<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 23, 1998
REGISTRATION NO. 333-
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- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
TRUE NORTH COMMUNICATIONS INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
--------------
DELAWARE 36-1088161
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
101 EAST ERIE STREET
CHICAGO, IL 60611-2897
(312) 425-6500
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
--------------
BRUCE MASON
CHIEF EXECUTIVE OFFICER
TRUE NORTH COMMUNICATIONS INC.
101 EAST ERIE STREET
CHICAGO, IL 60611-2897
(312) 425-6500
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPY TO:
THEODORE J. THEOPHILOS
EXECUTIVE VICE PRESIDENT OF CORPORATE DEVELOPMENT
AND BUSINESS AFFAIRS
TRUE NORTH COMMUNICATIONS INC.
101 EAST ERIE STREET
CHICAGO, IL 60611-2897
--------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement as determined
by the Selling Stockholders.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO TO BE OFFERING PRICE AGGREGATE REGISTRATION
BE REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE FEE
- -----------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.33 1/3
par value(2)(3)........ 82,092 shares $27 1/8 $2,226,745.50 $657
- -----------------------------------------------------------------------------------
</TABLE>
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(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(c) under the Securities Act of 1933 based on the average of
the high and low prices per share of the Registrant's Common Stock on the
New York Stock Exchange as reported in the consolidated reporting system
on June 16, 1998.
(2) Includes 82,092 associated preferred stock purchase rights ("Rights") to
purchase 1/2,000 of a share of Series A Junior Participating Preferred
Stock, par value $1.00 per share. Rights initially are attached to and
trade with the Common Stock of the Registrant. The value attributable to
such Rights, if any, is reflected in the market price of the Common Stock.
(3) Pursuant to Rule 416 under the Securities Act of 1933, there is also
registered hereby an indeterminate number of securities that may be issued
with respect to such shares of Common Stock as a result of stock splits,
stock dividends or similar transactions.
--------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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- -------------------------------------------------------------------------------
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO THE REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS +
+OF ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED JUNE 23, 1998
PROSPECTUS
82,092 SHARES
TRUE NORTH COMMUNICATIONS INC.
COMMON STOCK
The shares offered hereby are 82,092 issued and outstanding shares (the
"Shares") of Common Stock, par value $.33 1/3 per share (the "Common Stock"),
of True North Communications Inc. (the "Company"). All of the Shares offered
hereby are offered for the account of and may be sold from time to time by
Brian P. Tierney (the "Selling Stockholder").
The Company has been advised that the Selling Stockholder intends to sell the
Shares in one or more ordinary brokerage transactions on the New York Stock
Exchange ("NYSE") at market prices prevailing at the time of such sale (subject
to customary or negotiated brokerage commissions) using such broker-dealers as
may enter into arrangements with the Selling Stockholder. The Company will not
receive any of the proceeds from the sale of the Shares by the Selling
Stockholder. See "Plan of Distribution."
All expenses of registration incurred in connection with this offering are
being borne by the Company, but all selling and other expenses incurred by the
Selling Stockholder will be borne by the Selling Stockholder. The expenses so
payable by the Company are estimated to aggregate approximately $5,300. The
Company and the Selling Stockholder have each agreed to indemnify the other
against certain liabilities, including certain liabilities under the Securities
Act.
The Common Stock is listed on the NYSE under the symbol "TNO." On June 16,
1998, the closing price of the Common Stock on the NYSE was $27 3/4 per share.
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CON-
TRARY IS A CRIMINAL OFFENSE.
-----------
No person is authorized to give any information or to make any representation
not contained in this Prospectus and, if given or made, such information or
representation must not be relied upon as having been authorized by the Company
or the Selling Stockholder. This Prospectus does not constitute an offer to
sell, or a solicitation of an offer to buy, any securities other than the
registered shares to which it relates, nor shall there be any sale of the
shares by any person in any jurisdiction in which it is unlawful for such
person to make such offer, solicitation or sale. Neither the delivery of this
Prospectus nor any sale made hereunder shall under any circumstances create an
implication that the information contained herein is correct as of any time
subsequent to the date hereof.
The date of this Prospectus is , 1998.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational reporting requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information
with the Securities and Exchange Commission (the "Commission"). Such material
may be inspected and copied at the public reference facilities maintained by
the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 and at the
Commission's regional offices at Seven World Trade Center, 13th Floor, New
York, New York, 10048, and 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661; and copies of such material can be obtained from the Reference
Section of the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. Reports, proxy statements and other information concerning
the Company may also be inspected at the offices of the New York Stock
Exchange at 20 Broad Street, New York, New York 10005. The Commission
maintains a Web site that contains reports, proxy and information statements
and other information regarding registrants that file electronically with the
Commission. The address of the Commission's Web site is http://www.sec.gov.
The Company has filed with the Commission a Registration Statement (which
term shall include all amendments, exhibits and schedules thereto) on Form S-3
(the "Registration Statement") under the Securities Act of 1933, as amended,
with respect to the Shares offered hereby. This Prospectus does not contain
all the information set forth in the Registration Statement, certain parts of
which are omitted in accordance with the rules and regulations of the
Commission, and to which reference is hereby made. Statements made in this
Prospectus as to the contents of any document referred to are not necessarily
complete and, in each instance, reference is made to the copy of such document
filed or incorporated by reference as an exhibit for a more complete
description of the matter involved, and each such statement shall be deemed
qualified in its entirety by such reference. The Registration Statement,
including the exhibits and schedules thereto, may be inspected at the public
reference facilities maintained by the Commission as described above and
copies of all or any part thereof may be obtained from such office upon
payment of the prescribed fees.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents and information heretofore filed with the Commission
are hereby incorporated by reference in this Prospectus:
(1) the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997;
(2) the Company's quarterly report on Form 10-Q for the period ended
March 31, 1998;
(3) the description of the Company's capital stock contained in the
Company's Registration Statement on Form S-4 filed on November 26, 1997,
Registration No. 333-41189, and any amendment or report filed for the
purposes of updating such description;
(4) the description of the Company's Preferred Stock Purchase Rights
contained in the Company's Registration Statement on Form 8-A filed on
November 18, 1988, and any amendment or report filed for the purpose of
updating such description; and
(5) all other reports filed pursuant to Sections 13(a) or 15(d) of the
Exchange Act since December 31, 1997.
All documents filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this
Prospectus and prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Prospectus and to be part hereof from the date of filing
such documents with the Commission. Any statement contained herein or in a
document incorporated by reference herein shall be deemed to be modified or
superseded for all purposes to the extent that a statement contained in this
Prospectus or in any other subsequently filed document which also is or is
deemed to be incorporated by
2
<PAGE>
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person, to whom a copy of
this Prospectus is delivered, upon written or oral request of any such person,
a copy of any and all of the information that has been or may be incorporated
by reference in this Prospectus, other than exhibits to such documents not
specifically described above. Requests for such copies should be directed to
the Secretary of the Company at 101 East Erie Street, Chicago, Illinois 60611.
The Company's telephone number at that location is (312) 425-6500.
THE COMPANY
In December 1994, the Company succeeded Foote, Cone & Belding
Communications, Inc. as the holding company for Foote, Cone & Belding. In
December 1997, through the merger of a subsidiary of the Company with Bozell,
Jacobs, Kenyon & Eckhardt, Inc., the Company almost doubled its size by adding
Bozell Worldwide, Temerlin McClain and certain specialized communications
businesses to its network.
The Company offers full-service advertising through two separate,
independent global agency networks: Foote, Cone, & Belding Worldwide and
Bozell Worldwide, by themselves and through their respective subsidiaries and
affiliates, independently operate separate advertising agency networks
worldwide. Their primary business is to create marketing communications for
their clients' goods and services across the spectrum of advertising and
promotion media. Each of the agency networks has its own clients and competes
with the other in certain markets. The Company also operates two other
independent full-service agencies, Temerlin McClain, Inc. and Tierney &
Partners, Inc. ("Tierney & Partners"). In addition, the Company owns certain
marketing services and specialty advertising companies through the True North
Diversified Services Companies, and certain interactive marketing companies
through TN Technologies Inc. The Company's corporate headquarters are located
at 101 East Erie Street, Chicago, Illinois 60611 and its telephone number is
(312) 425-6500.
SELLING STOCKHOLDER
The Company delivered the Shares to BP Tierney & Associates, Inc. t/a The
Tierney Group, a Pennsylvania corporation ("BP Tierney"), as part of the
consideration for the purchase of substantially all of the assets of BP
Tierney pursuant to an Asset Purchase Agreement dated as of March 31, 1998 by
and among The Tierney Group, Inc., a subsidiary of the Company, the Company,
BP Tierney and the Selling Stockholder (the "Asset Purchase Agreement").
Pursuant to the terms of the Asset Purchase Agreement, the Company agreed to
use its reasonable best efforts to cause the Shares to be registered for the
purpose of the resale thereof in ordinary brokerage transactions and to keep
the registration statement related to this Prospectus effective for a period
of one year from the closing date under the Asset Purchase Agreement (or such
earlier time as all of the Shares are sold). The Company shall be entitled to
prohibit the use of this Prospectus for a period of up to ninety days (or such
additional period as may be required) if a valid corporate purpose exists in
the Company's good faith business judgment. BP Tierney has informed the
Company that following the closing under the Asset Purchase Agreement it
distributed the Shares to the Selling Stockholder.
3
<PAGE>
Pursuant to a Management Agreement between Brian P. Tierney, Tierney &
Partners and the Company dated as of June 28, 1995, Mr. Tierney was retained
to act as the chief executive of Tierney & Partners, a subsidiary of the
Company. Mr. Tierney and the Company were also party to a Stock Redemption
Agreement dated as of June 28, 1995, pursuant to which Mr. Tierney had the
right, under certain circumstances, to cause Tierney & Partners to redeem the
shares of its stock held by the Company. The result of such transaction would
be that Mr. Tierney could then have owned 100% of the issued and outstanding
capital stock of Tierney & Partners. Pursuant to the Asset Purchase Agreement,
the Company made a cash payment to Mr. Tierney in exchange for the
cancellation of such right. As of the date of this Prospectus, Mr. Tierney is
the beneficial owner of 83,392 shares of Common Stock. Assuming the sale of
all 82,092 Shares offered hereby, Mr. Tierney will beneficially own 1,300
shares of Common Stock.
PLAN OF DISTRIBUTION
The Company has been advised by the Selling Stockholder that he intends to
sell all or a portion of the Shares offered hereby from time to time in
ordinary brokerage transactions on the NYSE at market prices prevailing at the
time of such sale (subject to customary or negotiated brokerage commissions)
using such broker-dealers as may enter into arrangements with the Selling
Stockholder. The Selling Stockholder will pay all brokerage commissions
applicable to such transactions. The Company will not receive any of the
proceeds from the sale of the Shares by the Selling Stockholder.
The Company is registering the Shares in connection with the Asset Purchase
Agreement. Pursuant to the terms of the Asset Purchase Agreement, the Company
and the Selling Stockholder have each agreed to indemnify the other against
certain liabilities, including certain liabilities under the Securities Act.
There can be no assurance that the Selling Stockholder will sell any or all
of the Shares offered by them hereunder.
The Selling Stockholder and any broker executing selling orders on behalf of
the Selling Stockholder may be deemed to be an "underwriter" within the
meaning of the Securities Act. Commissions received by any such broker may be
deemed to be underwriting commissions under the Securities Act.
LEGAL MATTERS
The validity of the Shares being offered hereby and certain other legal
matters will be passed upon for the Company by Suzanne E. Sutkowski, Vice
President and Assistant General Counsel of the Company.
EXPERTS
The consolidated financial statements of the Company and its subsidiaries
included (or incorporated by reference) in the Company's Annual Report on Form
10-K for the year ended December 31, 1997 have been audited by Arthur Andersen
LLP, independent public accountants, as indicated in their reports with
respect thereto, and are incorporated herein in reliance upon the authority of
Arthur Andersen LLP as experts in giving said reports.
The consolidated statements of operations, cash flows and stockholders'
equity of Bozell, Jacobs, Kenyon & Eckhardt, Inc. and subsidiaries for two
years ended March 31, 1997, were audited by KPMG Peat Marwick LLP, independent
certified public accountants, and are included in the consolidated financial
statements of True North Communications Inc. for the two years ending December
31, 1996. The reports of KPMG Peat Marwick LLP on the statements of
operations, cash flows and stockholders' equity of Bozell, Jacobs, Kenyon &
Eckhardt, Inc. and subsidiaries for the two years ended March 31, 1997, are
incorporated by reference in reliance upon the authority of KPMG Peat Marwick
LLP as experts in accounting and auditing.
4
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.*
The following is a statement of estimated expenses of the issuance and
distribution of the securities being registered (other than underwriting
discounts and commissions) all of which are being paid by the Registrant:
<TABLE>
<S> <C>
SEC Registration Fee.............................................. $ 657
NYSE listing fee.................................................. 1,500
Accountant's fees and expenses.................................... 2,000
Legal fees and expenses........................................... 1,000
Miscellaneous..................................................... 143
------
TOTAL......................................................... $5,300
======
</TABLE>
- --------
*All amounts are estimates except for the SEC registration fee and the NYSE
listing fee.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 145 of the Delaware General Corporation Law, the Company has
broad powers to indemnify its directors and officers against liabilities they
may incur in such capacities, including liabilities under the Securities Act.
The Company's bylaws also provide that the Company will indemnify its
directors, officers, employees and other agents to the fullest extent
permitted by Delaware law.
The Company's Certificate of Incorporation, as amended, provides for the
elimination of liability for monetary damages for breach of the directors'
fiduciary duty of care to the Company or its stockholders. These provisions do
not eliminate the directors' duty of care and, in appropriate circumstances,
equitable remedies such as injunctive or other forms of non-monetary relief
will remain available under Delaware law. In addition, each director will
continue to be subject to liability for breach of the director's duty of
loyalty to the Company or its stockholders, for acts or omissions not in good
faith or involving intentional misconduct, for knowing violations of law, for
any transaction from which the director derived an improper personal benefit,
or for payment of dividends or approval of stock repurchases or redemptions
that are unlawful under Delaware law. The provision does not affect a
director's responsibilities under any other laws, such as the federal
securities laws or state or federal environmental laws.
Furthermore, the Company has secured insurance covering the Company and its
directors and officers and those of its principal subsidiaries against certain
liabilities.
ITEM 16. EXHIBITS.
<TABLE>
<C> <S>
4.1 Registrant's Restated Certificate of Incorporation, as amended
(incorporated by reference to Exhibit 3(i) to Registrant's Form
10-K for the year ended December 31, 1994).
4.2 Certificate of Ownership and Merger changing Registrant's name
to True North Communications Inc. (incorporated by reference to
Exhibit (3)(i) to Registrant's Current Report on Form 8-K filed
December 9, 1994).
4.3 Certificate of Correction to Correct a Certain Error in the Re-
stated Certificate of Incorporation, filed in Delaware on Decem-
ber 3, 1996 (incorporated by reference to Exhibit 10.2 to Regis-
trant's Current Report on Form 8-K dated June 10, 1997).
4.4 Registrant's Bylaws, as restated March 4, 1998 (incorporated by
reference to Exhibit 4.4 to Registrant's Post-Effective Amend-
ment No. 1 on Form S-8 dated March 17, 1998 to Registrant's Reg-
istration Statement on Form S-4, filed November 26, 1997 (File
No. 333-41189)).
</TABLE>
5
<PAGE>
<TABLE>
<C> <S>
4.5 Certificate of Increase of Shares Designated as Series A Junior
Participating Preferred Stock, filed in Delaware on December 3,
1997 (incorporated by reference to Exhibit 4.5 to Registrant's
Annual Report on Form 10-K for the year ended December 31,
1997).
4.6 Certificate of Amendment of Restated Certificate of Incorpora-
tion, filed in Delaware on December 30, 1997 (incorporated by
reference to Exhibit 4.6 to Registrant's Annual Report on Form
10-K for the year ended December 31, 1997).
4.7 Rights Agreement dated as of November 16, 1988 between Regis-
trant and Harris Trust and Savings Bank, as Rights Agent (incor-
porated by reference to Exhibit 1 to Registrant's Registration
Statement on Form 8-A under the Securities Exchange Act of 1934
filed on November 18, 1988).
5.1* Opinion of Suzanne E. Sutkowski, Vice President, Assistant Gen-
eral Counsel of Registrant.
10.1* 364-Day Credit Agreement, dated as of May 29, 1998 among Regis-
trant, the initial lenders named therein and Citibank, N.A., as
Administrative Agent.
10.2* Five-Year Credit Agreement, dated as of May 29, 1998 among Reg-
istrant, the initial lenders named therein and Citibank, N.A.,
as Administrative Agent.
10.3*# Employment Agreement dated as of May 1, 1998 between Registrant
and Donald L. Seeley.
10.4*# Employment Agreement dated as of May 1, 1998 between Registrant
and Theodore J. Theophilos.
23.1* Consent of Arthur Andersen LLP, independent public accountants.
23.2* Consent of KPMG Peat Marwick LLP, independent certified public
accountants.
23.3* Consent of Suzanne E. Sutkowski, Vice President, Assistant Gen-
eral Counsel of Registrant (included in Exhibit 5.1).
24.1* Power of Attorney.
99.1* Asset Purchase Agreement dated as of March 31, 1998 by and among
The Tierney Group, Inc., Registrant, BP Tierney & Associates,
Inc. t/a The Tierney Group and Brian P. Tierney.
</TABLE>
- --------
*Filed herewith.
#Management contract or compensatory plan or arrangement.
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes (i) to file, during any
period in which offers or sales are being made, a post-effective amendment to
this registration statement:
(A) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(B) to reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in the volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) under the Securities Act of 1933 if, in the
aggregate, the changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement; and
(C) to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement
provided, however, that paragraphs (a)(i)(A) and (a)(i)(B) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant
6
<PAGE>
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in this registration statement, (ii) that,
for purposes of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof and (iii) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
7
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF CHICAGO, STATE OF ILLINOIS ON JUNE 22, 1998.
True North Communications Inc.
/s/ Bruce Mason
By: _________________________________
Bruce Mason
Chief Executive Officer
(Principal Executive Officer)
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS ON JUNE 22,
1998.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ Bruce Mason Chief Executive Officer and Director
___________________________________________
Bruce Mason
/s/ Donald L. Seeley Executive Vice President, Chief Financial
___________________________________________ Officer (Principal Financial Officer)
Donald L. Seeley
/s/ John J. Rezich Vice President, Controller
___________________________________________ (Principal Accounting Officer)
John J. Rezich
David A. Bell* Director
___________________________________________
David A. Bell
Richard S. Braddock* Director
___________________________________________
Richard S. Braddock
Donald M. Elliman, Jr.* Director
___________________________________________
Donald M. Elliman, Jr.
W. Grant Gregory* Director
___________________________________________
W. Grant Gregory
Leo-Arthur Kelmenson* Director
___________________________________________
Leo-Arthur Kelmenson
Richard P. Mayer* Director
___________________________________________
Richard P. Mayer
Michael E. Murphy* Director
___________________________________________
Michael E. Murphy
Charles D. Peebler, Jr.* Director
___________________________________________
Charles D. Peebler, Jr.
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
J. Brendan Ryan* Director
___________________________________________
J. Brendan Ryan
Stephen T. Vehslage* Director
___________________________________________
Stephen T. Vehslage
</TABLE>
/s/ Theodore J. Theophilos
*By: ________________________________
Theodore J. Theophilos
as Attorney-in-Fact
II-2
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S> <C>
4.1 Registrant's Restated Certificate of Incorporation, as
amended (incorporated by reference to Exhibit 3(i) to Regis-
trant's Form 10-K for the year ended December 31, 1994).
4.2 Certificate of Ownership and Merger changing Registrant's
name to True North Communications Inc. (incorporated by ref-
erence to Exhibit (3)(i) to Registrant's Current Report on
Form 8-K filed December 9, 1994).
4.3 Certificate of Correction to Correct a Certain Error in the
Restated Certificate of Incorporation, filed in Delaware on
December 3, 1996 (incorporated by reference to Exhibit 10.2
to Registrant's Current Report on Form 8-K dated June 10,
1997).
4.4 Registrant's Bylaws, as restated March 4, 1998 (incorporated
by reference to Exhibit 4.4 to Registrant's Post-Effective
Amendment No. 1 on Form S-8 dated March 17, 1998 to Regis-
trant's Registration Statement on Form S-4, filed November
26, 1997 (File No. 333-41189)).
4.5 Certificate of Increase of Shares Designated as Series A Ju-
nior Participating Preferred Stock, filed in Delaware on De-
cember 3, 1997 (incorporated by reference to Exhibit 4.5 to
Registrant's Annual Report on Form 10-K for the year ended
December 31, 1997).
4.6 Certificate of Amendment of Restated Certificate of Incorpo-
ration, filed in Delaware on December 30, 1997 (incorporated
by reference to Exhibit 4.6 to Registrant's Annual Report on
Form 10-K for the year ended December 31, 1997).
4.7 Rights Agreement dated as of November 16, 1988 between Regis-
trant and Harris Trust and Savings Bank, as Rights Agent (in-
corporated by reference to Exhibit 1 to Registrant's Regis-
tration Statement on Form 8-A under the Securities Exchange
Act of 1934 filed on November 18, 1988).
5.1* Opinion of Suzanne E. Sutkowski, Vice President, Assistant
General Counsel of Registrant.
10.1* 364-Day Credit Agreement, dated as of May 29, 1998 among Reg-
istrant, the initial lenders named therein and Citibank,
N.A., as Administrative Agent.
10.2* Five-Year Credit Agreement, dated as of May 29, 1998 among
Registrant, the initial lenders named therein and Citibank,
N.A., as Administrative Agent.
10.3* Employment Agreement dated as of May 1, 1998 between Regis-
trant and Donald L. Seeley.
10.4*# Employment Agreement dated as of May 1, 1998 between Regis-
trant and Theodore J. Theophilos.
23.1* Consent of Arthur Andersen LLP, independent public accoun-
tants.
23.2* Consent of KPMG Peat Marwick LLP, independent certified pub-
lic accountants.
23.3* Consent of Suzanne E. Sutkowski, Vice President, Assistant
General Counsel of Registrant (included in Exhibit 5.1).
24.1* Power of Attorney.
99.1* Asset Purchase Agreement dated as of March 31, 1998 by and
among The Tierney Group, Inc., Registrant, BP Tierney & Asso-
ciates, Inc. t/a The Tierney Group and Brian P. Tierney.
</TABLE>
* Filed herewith.
# Management contract or compensatory plan or arrangement.
<PAGE>
EXHIBIT 5.1
True North Communications Inc.
101 East Erie Street
Chicago, Illinois 60611
True North Communications Inc.
101 East Erie Street
Chicago, Illinois 60611
June 23, 1998
Ladies and Gentlemen:
This opinion is delivered to you in connection with the registration
statement on Form S-3 to be filed with the Securities and Exchange Commission on
the date hereof (the "Registration Statement") relating to the registration of
82,092 shares of common stock, $.33-1/3 par value per share, of True North
Communications Inc. (the "Company"), together with Preferred Stock Purchase
Rights (the "Rights") associated therewith for sales which may be made by
certain stockholders of the Company (the "Registered Shares"). The terms of the
Rights are set forth in the Rights Agreement dated as of November 16, 1988
between the Company and Harris Trust and Savings Bank, as Rights Agent.
I, in my capacity as Vice President and Assistant General Counsel of the
Company, am familiar with the proceedings to date with respect to the proposed
sale of the Registered Shares and have examined such records, documents and
matters of law and satisfied myself as to such matters of fact as I have
considered relevant for the purposes of this opinion.
I am of the opinion that:
1. The Company is a corporation validly existing under the laws of the
State of Delaware.
2. The Registered Shares constitute validly issued, fully paid and
nonassessable shares of common stock, $.33-1/3 par value per share, of
the Company.
<PAGE>
3. The Rights associated with the Shares will be legally issued when such
Rights shall have been duly issued in accordance with the terms of the
Rights Agreement.
I do not find it necessary for the purposes of this opinion, and
accordingly do not purport to cover herein, the application of the securities or
"blue sky" laws of the various states to the sale of the Registered Shares.
The foregoing opinions are limited to the specific issues addressed herein,
and no opinion may be inferred or implied beyond that expressly stated herein.
The advice on every legal issue addressed in this letter is based exclusively
on the internal laws of the State of Illinois, the Delaware General Corporation
Law or the federal law of the United States. I assume no obligation to revise
or supplement this opinion should the present laws of the States of Illinois or
Delaware or the federal law of the United States be changed by legislative
action, judicial decision or otherwise.
I hereby consent to the filing of this opinion with the Commission as
Exhibit 5.1 to the Registration Statement and to the references in the
Registration Statement thereto. In giving this consent, I do not thereby admit
that I am in the category of persons whose consent is required under Section 7
of the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission.
Very truly yours,
/s/ Suzanne E. Sutkowski
Suzanne E. Sutkowski
Vice President,
Assistant General Counsel
2
<PAGE>
Exhibit 10.1
===============================================================================
364-DAY
CREDIT AGREEMENT
Dated as of May 29, 1998
Among
TRUE NORTH COMMUNICATIONS INC.,
as Borrower,
-- --------
and
THE INITIAL LENDERS NAMED HEREIN,
as Initial Lenders,
-- ------- -------
and
CITIBANK, N.A.,
as Administrative Agent
-- -------------- -----
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms........................................ 1
SECTION 1.02. Computation of Time Periods.................................. 20
SECTION 1.03. Accounting Terms............................................. 20
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances................................ 20
SECTION 2.02. Making the Revolving Credit Advances......................... 21
SECTION 2.03. The Competitive Bid Advances................................. 22
SECTION 2.04. Fees......................................................... 25
SECTION 2.05. Termination or Reduction of the Commitments.................. 26
SECTION 2.06. Repayment of Advances........................................ 26
SECTION 2.07. Interest on Revolving Credit Advances........................ 26
SECTION 2.08. Interest Rate Determination and Availability................. 28
SECTION 2.09. Optional Conversion of Revolving Credit Advances............. 29
SECTION 2.10. Prepayments of Revolving Credit Advances..................... 30
SECTION 2.11. Increased Costs.............................................. 31
SECTION 2.12. Illegality................................................... 32
SECTION 2.13. Payments and Computations.................................... 32
SECTION 2.14. Taxes........................................................ 34
SECTION 2.15. Sharing of Payments, Etc..................................... 36
SECTION 2.16. Increase in the Aggregate Commitments........................ 36
SECTION 2.17. Extension of Revolver Termination Date....................... 38
SECTION 2.18. Substitution of Currency..................................... 40
SECTION 2.19. Use of Proceeds.............................................. 40
ARTICLE III CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01 and
2.03......................................................... 40
SECTION 3.02. Conditions Precedent to Each Revolving Credit Borrowing...... 42
SECTION 3.03. Conditions Precedent to Each Competitive Bid Borrowing....... 42
SECTION 3.04. Conditions Precedent to Each Increase Date and Each
Extension Date............................................... 42
SECTION 3.05. Determinations Under Section 3.01............................ 43
ARTICLE IV REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower............... 43
ARTICLE V COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants........................................ 47
SECTION 5.02. Negative Covenants........................................... 49
SECTION 5.03. Financial Covenants.......................................... 53
ARTICLE VI EVENTS OF DEFAULT
SECTION 6.01. Events of Default............................................ 54
ARTICLE VII THE ADMINISTRATIVE AGENT
<PAGE>
SECTION 7.01. Authorization and Action..................................... 56
SECTION 7.02. Administrative Agent's Reliance, Etc......................... 56
SECTION 7.03. Citibank and Affiliates...................................... 57
SECTION 7.04. Lender Credit Decision....................................... 57
SECTION 7.05. Indemnification.............................................. 58
SECTION 7.06. Successor Administrative Agent............................... 58
SECTION 7.07. The Sub-Agent................................................ 59
ARTICLE VIII MISCELLANEOUS
SECTION 8.01. Amendments, Etc.............................................. 59
SECTION 8.02. Notices, Etc................................................. 60
SECTION 8.03. No Waiver; Remedies.......................................... 60
SECTION 8.04. Costs and Expenses........................................... 61
SECTION 8.05. Right of Setoff.............................................. 62
SECTION 8.06. Binding Effect............................................... 63
SECTION 8.07. Assignments and Participations............................... 63
SECTION 8.08. Confidentiality.............................................. 66
SECTION 8.09. Governing Law................................................ 67
SECTION 8.10. Execution in Counterparts.................................... 67
SECTION 8.11. Judgment..................................................... 67
SECTION 8.12. Jurisdiction, Etc............................................ 67
SECTION 8.13. Waiver of Jury Trial......................................... 68
<PAGE>
iii
SCHEDULES
Schedule I - Commitments and Applicable Lending Offices
Schedule 3.01(b) - Disclosed Litigation
Schedule 5.02(b) - Existing Indebtedness
EXHIBITS
Exhibit A-1 - Form of Revolving Credit Promissory Note
Exhibit A-2 - Form of Competitive Bid Promissory Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C-1 - Form of Assignment and Acceptance
Exhibit C-2 - Form of Assumption Agreement
Exhibit D-1 - Form of Opinion of Assistant General Counsel of the
Borrower
Exhibit D-2 - Form of Opinion of Special Counsel for the Borrower
Exhibit E - Form of Terms of Subordination
<PAGE>
364-DAY CREDIT AGREEMENT
Dated as of May 29, 1998
TRUE NORTH COMMUNICATIONS INC., a Delaware corporation (the
"Borrower"), the banks, financial institutions and other institutional lenders
(collectively, the "Initial Lenders") listed on the signature pages hereof and
CITIBANK, N.A. ("Citibank"), as administrative agent (together with any
successor thereto appointed pursuant to Article VII, the "Administrative Agent")
for the Lenders (as hereinafter defined), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and the plural forms of the terms defined):
"Administrative Agent" has the meaning specified in the recital of
parties to this Agreement.
"Administrative Agent's Account" means (a) in the case of Advances
denominated in US Dollars, the account of the Administrative Agent
maintained by the Administrative Agent at Citibank at its office at Two
Penns Way, New Castle, Delaware 19720, Account No. 36852248, Reference:
True North Communications Inc., Attention: Bank Loan Syndications, (b) in
the case of Advances denominated in a Foreign Currency, the account of the
Sub-Agent designated from time to time by the Administrative Agent in a
written notice to the Borrower and the Lenders and (c) such other account
maintained by the Administrative Agent and designated by the Administrative
Agent as such in a written notice to the Borrower and the Lenders.
"Advance" means a Revolving Credit Advance or a Competitive Bid
Advance.
"Affiliate" means, with respect to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person. For
purposes of this definition, the term "control" (including the terms
"controlling", "controlled by" and "under common control with") of a Person
means (a) in all cases other than clause (ii) of the definition of
"Eligible Assignee", the possession, direct or indirect, of the power to
vote 10% or more of the Voting Stock of such Person and (b) in all cases,
to direct or cause the direction of the management and policies of such
Person, whether through the ownership of Voting Stock, by contract or
otherwise.
"Agreement Value" means, with respect to any Hedge Agreement at any
date of determination, the amount, if any, that would be payable to any
bank thereunder in respect of the "agreement value" under such Hedge
Agreement if such Hedge Agreement were terminated on such date, calculated
as provided in the International Swap Dealers Association, Inc. Code of
Standard Wording, Assumptions and Provisions for Swaps, 1992 Edition.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Base Rate Lending Office in the case of a Base Rate Advance and
such Lender's Eurocurrency Lending Office in the case of a Eurocurrency
Rate Advance and, in the case of a Competitive Bid Advance, the
<PAGE>
2
office of such Lender notified by such Lender to the Administrative Agent as its
Applicable Lending Office with respect to such Competitive Bid Advance.
"Applicable Margin" means a percentage per annum equal to the applicable
percentage set forth below for the Performance Level set forth below:
Performance Base Rate Eurocurrency
Level Advances Rate Advances
----------- ---------- -----------------
I 0.000% 0.275%
----------------------------------------------------------------------
II 0.000% 0.300%
----------------------------------------------------------------------
III 0.000% 0.375%
The Applicable Margin for each Eurocurrency Rate Advance shall be
determined by reference to the Performance Level in effect from time to
time.
"Applicable Percentage" means a percentage per annum equal to the
applicable percentage set forth below for the Performance Level set forth
below:
Performance
Level Facility Fee Utilization Fee
----------- ------------ ---------------
I 0.100% 0.050%
II 0.125% 0.050%
III 0.175% 0.050%
The Applicable Percentage for the Facility Fee and the Utilization Fee
shall be determined by reference to the Performance Level in effect from
time to time.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent and, if applicable, the Borrower, in substantially the
form of Exhibit C-1 hereto.
"Assuming Lender" means an Increasing Assuming Lender or an Extension
Assuming Lender.
"Assumption Agreement" means (a) in the case of any such agreement
delivered pursuant to Section 2.17(c), an assumption agreement entered into
between an Extension Assuming Lender and a Non-Consenting Lender and
accepted by the Administrative Agent and the Borrower, in substantially the
form of Exhibit C-2 hereto or such other form as is agreed among the
applicable Extension Assuming Lender, the applicable Non-Consenting Lender,
the Administrative Agent and the Borrower and (b) in the case of any such
agreement delivered pursuant to Section 2.16(d), an assumption agreement
entered into between an Increase Assuming Lender and the Borrower and
accepted by the Administrative Agent, in form and substance satisfactory to
the Administrative Agent.
<PAGE>
3
"Base Rate" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the higher of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate; and
(b) 1/2 of one percent per annum above the Federal Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance denominated in US
Dollars that bears interest as provided in Section 2.07(a)(i).
"Base Rate Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Base Rate Lending Office" opposite its
name on Schedule I hereto or in the Assignment and Acceptance or the Assumption
Agreement pursuant to which it became a Lender, as the case may be, or such
other office of such Lender as such Lender may from time to time specify to the
Borrower and the Administrative Agent for such purpose.
"Borrower" has the meaning specified in the recital of the parties to
this Agreement.
"Borrowing" means a Revolving Credit Borrowing or a Competitive Bid
Borrowing.
"Business Day" means a day of the year on which banks are not required
or authorized by law to close in New York, New York or Chicago, Illinois and, if
the applicable Business Day relates to any Eurocurrency Rate Advances, on which
dealings are carried on in the London interbank market and, if the applicable
Business Day relates to any Eurocurrency Rate Advances denominated in a Foreign
Currency, on which banks are open for business in London and in the country of
issue of the currency of such Eurocurrency Rate Advance.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response, Compensation
and Liability Information System maintained by the U.S. Environmental Protection
Agency.
"Citibank" has the meaning specified in the recital of parties to this
Agreement.
"Commitment" means, with respect to any Lender, the amount set forth
in US Dollars opposite such Lender's name on the signature pages hereof under
the caption "Commitment" or, if such Lender has entered into an Assignment and
Acceptance, the amount set forth for such Lender in the Register maintained by
the Administrative Agent pursuant to Section 8.07(d) or, if such Lender has
entered into an Assumption Agreement, the amount set forth as the Commitment of
such Lender in its Assumption Agreement, in each case as such amount may be
reduced pursuant to Section 2.05 or increased pursuant to Section 2.16.
"Commitment Date" has the meaning specified in Section 2.16(b).
"Commitment Increase" has the meaning specified in Section 2.16(a).
<PAGE>
4
"Competitive Bid Advance" means an advance denominated in US Dollars by a
Lender to the Borrower as part of a Competitive Bid Borrowing resulting from the
competitive bidding procedure described in Section 2.03.
"Competitive Bid Borrowing" means a borrowing consisting of simultaneous
Competitive Bid Advances from each of the Lenders whose offer to make one or
more Competitive Bid Advances as part of such Competitive Bid Borrowing has been
accepted under the competitive bidding procedure described in Section 2.03.
"Competitive Bid Note" means a promissory note of the Borrower payable to
the order of any Lender, in substantially the form of Exhibit A-2 hereto,
evidencing the indebtedness of the Borrower to such Lender resulting from a
Competitive Bid Advance made by such Lender.
"Competitive Bid Offer" means any offer by a Lender to make a Competitive
Bid Advance as part of a proposed Competitive Bid Borrowing pursuant to Section
2.03(a)(ii).
"Competitive Bid Reduction" means, at any time, the deemed use of each
Lender's Commitment in an amount equal to such Lender's Pro Rata Share of all
outstanding Competitive Bid Advances at such time.
"Confidential Information" means information that is furnished to the
Administrative Agent or any Lender by or on behalf of the Borrower or any of its
Subsidiaries in a writing designated as confidential, but does not include any
such information that is or becomes generally available to the public or that is
or becomes available to the Administrative Agent or such Lender from a source
other than the Borrower or any such Subsidiary that is not, to the best of the
Administrative Agent's or Lender's knowledge, acting in violation of a
confidentiality agreement with the Borrower or any such Subsidiary.
"Consenting Lender" has the meaning specified in Section 2.17(b).
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP.
"Consolidated EBITDA" means, for any period, (a) net income (or net loss)
of the Borrower and its Subsidiaries for such period plus (b) the sum of all
amounts which, in the determination of such net income (or net loss) for such
period, have been deducted for (i) Consolidated Interest Expense, (ii) income
tax expense, (iii) depreciation expense, (iv) amortization expense and (v)
extraordinary and unusual losses deducted in calculating net income less
extraordinary and unusual gains added in calculating net income, in each case
determined in accordance with GAAP for such period.
"Consolidated Interest Expense" means, with respect to the Borrower and its
Subsidiaries for any period, interest expense on all Indebtedness of the
Borrower and its Subsidiaries for such period (without any deduction for
interest income of the Borrower and its Subsidiaries for such period),
determined on a Consolidated basis and in accordance with GAAP, including,
without limitation, (a) in the case of the Borrower, (i) interest expense
accrued during such period in respect of Advances and (ii) all fees accrued
during such period pursuant to Section 2.04, (b) the interest component of all
obligations as lessee under leases that have been or should be, in accordance
with
<PAGE>
5
GAAP, capitalized on the Consolidated balance sheet of the Borrower and its
Subsidiaries and (c) the net payment, if any, payable in connection with
interest rate Hedge Agreements less the net payment, if any, received in
connection with interest rate Hedge Agreements.
"Consolidated Net Worth" means, at any date of determination, (a) total
assets of the Borrower and its Subsidiaries (including, without limitation, all
items that are treated as intangibles in accordance with GAAP) at such date less
(b) total liabilities of the Borrower and its Subsidiaries (including, without
limitation, all deferred taxes) at such date, in each case determined on a
Consolidated basis and in accordance with GAAP for such period; provided,
however, that the term "Consolidated Net Worth" shall not give effect to any
cumulative translation adjustments (where positive or negative) at any such
date.
"Continuing Director" means, for any period, an individual who is a member
of the board of directors of the Borrower on the first day of such period or who
has been nominated to the board of directors of the Borrower by a majority of
the other Continuing Directors who were members of the board of directors of the
Borrower at the time of such nomination.
"Conversion", "Convert" and "Converted" each refer to a conversion of
Revolving Credit Advances of one Type into Revolving Credit Advances of the
other Type or the continuation of Revolving Credit Advances of the same Type for
another Interest Period pursuant to Section 2.08 or 2.09.
"Default" means any Event of Default or any event that would constitute an
Event of Default but for the requirement that notice be given or time elapse or
both.
"Disclosed Litigation" has the meaning specified in Section 3.01(b).
"Domestic Subsidiary" means, at any time, any Subsidiary of the Borrower
that is not a Foreign Subsidiary at such time.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender, (ii) an Affiliate of a Lender or
(iii) any other Person approved by the Administrative Agent and the Borrower as
such, such approval not to be unreasonably withheld or delayed; provided,
however, that (i) neither the Borrower nor an Affiliate of the Borrower shall
qualify as an Eligible Assignee and (ii) the Borrower's approval shall not be
required during the continuance of an Event of Default.
"Environmental Action" means any judicial or administrative action, suit,
demand, demand letter, claim, notice of noncompliance or violation, notice of
liability or potential liability, proceeding, consent order or consent agreement
relating in any way to any Environmental Law, Environmental Permit or Hazardous
Materials or arising from alleged injury or threat of injury to health, safety
or the environment, including, without limitation, (a) by any governmental or
regulatory authority for enforcement, cleanup, removal, response, remedial or
other actions or damages and (b) by any governmental or regulatory authority or
any third party for damages, contribution, indemnification, cost recovery,
compensation or injunctive relief.
<PAGE>
6
"Environmental Law" means any federal, state, local or foreign statute,
law, ordinance, rule, regulation, code, order, judgment, decree or judicial
interpretation relating to pollution or protection of the environment, health,
safety or natural resources, including, without limitation, those relating to
the use, handling, transportation, treatment, storage, disposal, release or
discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval, identification number,
license or other authorization required under any Environmental Law.
"Equivalent" means (a) for any Foreign Currency on any date of
determination, the equivalent in US Dollars of such Foreign Currency determined
by using the quoted spot rate at which the Sub-Agent's principal office in
London, England offers to exchange US Dollars for such Foreign Currency in
London, England at the close of business on the Business Day immediately
preceding such date (unless otherwise expressly stated in this Agreement) and
(b) for US Dollars on any date of determination, the Equivalent in such Foreign
Currency of US Dollars determined by using the quoted spot rate at which the
Sub-Agent's principal office in London, England offers to exchange such Foreign
Currency for US Dollars in London, England at the close of business on the
Business Day immediately preceding such date (unless otherwise expressly stated
in this Agreement).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and the rulings
issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of ERISA
is a member of the Borrower's controlled group, or is under common control with
the Borrower, within the meaning of Section 414 of the Internal Revenue Code.
"ERISA Event" means:
(a) other than with respect to the True North Communications Inc.
Supplemental Pension Plan, which has been terminated effective December 31,
1997 in a standard termination pursuant to Section 4041(b) of ERISA, (i)
the occurrence of a reportable event, within the meaning of any of
paragraphs (1) through (8) of Section 4043(c) of ERISA, with respect to any
Plan unless the 30-day notice requirement with respect to such event has
been waived by the PBGC or (ii) the requirements of Section 4043(b) of
ERISA with a contributing sponsor, as defined in Section 4001(a)(13) of
ERISA, of a Plan, and an event described in paragraph (9), (10), (11), (12)
or (13) of Section 4043(c) of ERISA could reasonably be expected to occur
with respect to such Plan within the following 30 days;
(b) the application for a minimum funding waiver with respect to a
Plan;
(c) other than with respect to the True North Communications Inc.
Supplemental Pension Plan, which has been terminated effective December 31,
1997 in a standard termination pursuant to Section 4041(b) of ERISA, the
provision by the administrator of any Plan of a notice of intent to
terminate such Plan pursuant to Section 4041(a)(2) of ERISA (including any
such notice with respect to a plan amendment referred to in Section 4041(e)
of ERISA);
<PAGE>
7
(d) the cessation of operations at a facility in the circumstances
described in Section 4062(e) of ERISA of the Borrower or any ERISA
Affiliate in the circumstances described in Section 4062(e) of ERISA;
(e) the withdrawal by the Borrower or any ERISA Affiliate from a
Multiple Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA;
(f) the conditions for the imposition of a lien under Section 302(f)
of ERISA shall have been met with respect to any Plan;
(g) the adoption of an amendment to a Plan requiring the provision of
security to such Plan pursuant to Section 307 of ERISA; or
(h) the institution by the PBGC of proceedings to terminate a Plan
pursuant to Section 4042 of ERISA, or the occurrence of any event or
condition described in Section 4042 of ERISA that could constitute grounds
for the termination of, or the appointment of a trustee to administer, a
Plan.
"Eurocurrency Lending Office" means, with respect to any Lender, the office
of such Lender specified as its "Eurocurrency Lending Office" opposite its name
on Schedule I hereto or in the Assignment and Acceptance or the Assumption
Agreement pursuant to which it became a Lender, as the case may be (or, if no
such office is specified, its Base Rate Lending Office), or such other office of
such Lender as such Lender may from time to time specify to the Borrower and the
Administrative Agent for such purpose.
"Eurocurrency Liabilities" has the meaning specified in Regulation D of the
Board of Governors of the Federal Reserve System, as in effect from time to
time.
"Eurocurrency Rate" means, for any Interest Period for each Eurocurrency
Rate Advance comprising part of the same Revolving Credit Borrowing, an interest
rate per annum equal to:
(a) the rate per annum at which deposits in US Dollars or in the
applicable Foreign Currency, as the case may be, appear on page 3740 or
3750 (or a successor page thereto) of the Dow Jones Telerate Screen at or
about 11:00 A.M. (London time) two Business Days before the first day of
such Interest Period and for a period equal to such Interest Period; or
(b) if such rate does not so appear on the Dow Jones Telerate Screen
at such time, the average (rounded upward to the nearest whole multiple of
1/100 of one percent per annum, if such average is not a whole multiple of
1/16 of one percent per annum) of the rates per annum at which deposits in
US Dollars or in the applicable Foreign Currency, as the case may be, are
offered by the principal office of each of the Reference Banks in London,
England to prime banks in the London interbank market at or about 11:00
A.M. (London time) two Business Days before the first day of such Interest
Period in an amount substantially equal to such Reference Bank's
Eurocurrency Rate Advance comprising part of such Revolving Credit
Borrowing to be outstanding during such Interest Period and for a period
equal to such Interest Period; provided that any determination of the
Eurocurrency
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8
Rate for any Interest Period pursuant to this clause (b) shall be
determined by the Administrative Agent on the basis of applicable rates
furnished to and received by the Administrative Agent from the Reference
Banks two Business Days before the first day of such Interest Period,
subject, however, to the provisions of Section 2.08.
"Eurocurrency Rate Advance" means a Revolving Credit Advance denominated in
US Dollars or in a Foreign Currency that bears interest as provided in Section
2.07(a)(ii).
"Eurocurrency Rate Reserve Percentage" means, with respect to any Lender
for any Interest Period for any Eurocurrency Rate Advance made or to be made by
such Lender, the reserve percentage applicable two Business Days before the
first day of such Interest Period under regulations issued from time to time by
the Board of Governors of the Federal Reserve System (or any successor thereto)
for determining the actual reserve requirement (including, without limitation,
any emergency, supplemental or other marginal reserve requirement) for such
Lenders with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of liabilities
that includes deposits by reference to which the interest rate on Eurocurrency
Rate Advances is determined) having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Existing Credit Agreements" means, collectively, (a) the $60,000,000
Credit Agreement dated as of January 14, 1997 among the Borrower, the banks,
financial institutions and other institutional lenders party thereto and
Citibank, as administrative agent for the lenders thereunder, and (b) the
$90,000,000 Credit Agreement dated as of January 14, 1997 among the Borrower,
the banks, financial institutions and other institutional lenders party thereto
and Citibank, as administrative agent for the lenders thereunder, in each case
as amended, supplemented or otherwise modified to the date of this Agreement.
"Extension Assuming Lender" has the meaning specified in Section 2.17(c).
"Extension Date" has the meaning specified in Section 2.17(b).
"Facility Fee" has the meaning specified in Section 2.04(a).
"Federal Funds Rate" means, for any period, a fluctuating interest rate per
annum equal for each day during such period to the weighted average of the rates
on overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the immediately preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by it.
"Five-Year Credit Agreement" means the Credit Agreement being entered into
on the date of this Agreement among the Borrower, the banks, financial
institutions and other institutional lenders party thereto and Citibank, as the
administrative agent, as such agreement may be amended, supplemented or
otherwise modified hereafter from time to time.
"Fixed Charge Coverage Ratio" means, with respect to the Borrower and its
Subsidiaries for any period, the ratio of (a) (i) Consolidated EBITDA for such
period plus (ii) Net Rental Expense
<PAGE>
9
for such period to (b) (i) Consolidated Interest Expense for such period plus
(ii) Net Rental Expense for such period.
"Foreign Currency" means the lawful currency of the United Kingdom of
Great Britain and Northern Ireland, the lawful currency of the Federal Republic
of Germany, the lawful currency of the Republic of France, the lawful currency
of The Swiss Federation, the lawful currency of The Kingdom of the Netherlands,
the lawful currency of Japan and the lawful currency of the European Economic
and Monetary Union.
"Foreign Subsidiary" means a Subsidiary of the Borrower or any of its
Subsidiaries organized under the laws of a jurisdiction other than the United
States or any state thereof.
"Friendly Acquisition" means any acquisition of all or any portion of the
shares of capital stock of (or other ownership or profit interests in) any
Person that either (a) has been approved by the board of directors (or persons
performing similar functions) of such Person or (b) is a negotiated acquisition
of shares of capital stock of (or other ownership or profit interests in) such
Person which are not equity securities of a class that is registered or required
to be registered pursuant to Section 12 of the Securities Exchange Act of 1934,
as amended.
"GAAP" means generally accepted accounting principles in effect from time
to time in the United States of America and applied on a consistent basis,
subject, however, to the terms of Section 1.03.
"Hazardous Materials" means (a) petroleum and petroleum products,
byproducts or breakdown products, radioactive materials, asbestos-containing
materials, polychlorinated biphenyls and radon gas and (b) any other chemicals,
materials or substances designated, classified or regulated as "hazardous" or
"toxic" or as a "pollutant" or "contaminant" under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements, currency
future or option contracts and other similar agreements.
"Increase Assuming Lender" has the meaning specified in Section 2.16(d).
"Increase Date" has the meaning specified in Section 2.16(a).
"Increasing Lender" has the meaning specified in Section 2.16(b).
"Indebtedness" means, with respect to any Person (without duplication for
indebtedness or other obligations of such Person):
(a) all indebtedness of such Person for borrowed money;
(b) all obligations of such Person for the deferred purchase price of
property and assets or services (other than trade payables and other accounts
payable incurred in the ordinary course of such Person's business);
<PAGE>
10
(c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments;
(d) all obligations of such Person created or arising under any
conditional sale or other title retention agreement with respect to
property or assets acquired by such Person (even though the rights and
remedies of the seller or the lender under such agreement in the event of
default are limited to repossession or sale of such property or assets);
(e) all obligations of such Person as lessee under leases that have
been or should be, in accordance with GAAP, recorded as capitalized leases;
(f) all obligations, contingent or otherwise, of such Person in
respect of acceptances, letters of credit or similar extensions of credit;
(g) all obligations of such Person in respect of Hedge Agreements,
valued at the aggregate Agreement Value thereof;
(h) all obligations of such Person to purchase, redeem, retire,
defease or otherwise make any payment in respect of any shares of capital
stock of (or other ownership or profit interests in) such Person or any
other Person, or any warrants, rights or options to acquire such shares or
other interests, valued, in the case of Redeemable Preferred Stock, at the
greater of (i) its voluntary or involuntary liquidation preference plus
accrued and unpaid dividends and (ii) the aggregate amount payable therefor
upon purchase, redemption, defeasance or payment therefor (but excluding
any such obligation arising solely as a result of the declaration of a
dividend (or similar distribution) on any such shares of capital stock of
such Person which is not then required to have been paid or otherwise
satisfied);
(i) all Indebtedness of other Persons referred to in clauses (a)
through (h) above or clause (j) below guaranteed directly or indirectly in
any manner by such Person, or in effect guaranteed directly or indirectly
by such Person through an agreement (i) to pay or purchase such
Indebtedness or to advance or supply funds for the payment or purchase of
such Indebtedness, (ii) to purchase, sell or lease (as lessee or lessor)
property or assets, or to purchase or sell services, primarily for the
purpose of enabling the debtor to make payment of such Indebtedness or to
assure the holder of such Indebtedness against loss, (iii) to supply funds
to or in any other manner to invest in the debtor (including any agreement
to pay for property, assets or services irrespective of whether such
property or assets are received or such services are rendered) or (iv)
otherwise to assure a creditor against loss; and
(j) all Indebtedness referred to in clauses (a) through (i) above
secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property and
assets (including, without limitation, accounts and contract rights) owned
by such Person, even though such Person has not assumed or become liable
for the payment of such Indebtedness.
"Indemnified Party" has the meaning specified in Section 8.04(b).
"Initial Lenders" has the meaning specified in the recital of parties to
this Agreement.
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11
"Interest Period" means, for each Eurocurrency Rate Advance comprising
part of the same Revolving Credit Borrowing, the period commencing on the date
of such Eurocurrency Rate Advance or the date of the Conversion of any Base Rate
Advance into such Eurocurrency Rate Advance and ending on the last day of the
period selected by the Borrower pursuant to the provisions below and,
thereafter, with respect to any such Eurocurrency Rate Advance, each subsequent
period commencing on the last day of the immediately preceding Interest Period
and ending on the last day of the period selected by the Borrower pursuant to
the provisions below. The duration of each such Interest Period shall be one
week or one, two, three or six months, as the Borrower may, upon notice received
by the Administrative Agent not later than 11:00 A.M. (New York City time) on
the third Business Day prior to the first day of such Interest Period, select;
provided, however, that:
(i) the Borrower may not select any Interest Period that ends after
the scheduled Revolver Termination Date or, if the Eurocurrency Rate
Advances comprising part of one or more Revolving Credit Borrowings have
been converted to a term loan pursuant to Section 2.06 prior to the time of
such selection, that ends after the Maturity Date;
(ii) Interest Periods commencing on the same date for Eurocurrency
Rate Advances comprising part of the same Revolving Credit Borrowing shall
be of the same duration;
(iii) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such Interest
Period shall be extended to occur on the next succeeding Business Day,
provided, however, that, if such extension would cause the last day of such
Interest Period to occur in the next succeeding calendar month, the last
day of such Interest Period shall occur on the immediately preceding
Business Day; and
(iv) whenever the first day of any Interest Period occurs on a day of
an initial calendar month for which there is no numerically corresponding
day in the calendar month that succeeds such initial calendar month by the
number of months equal to the number of months in such Interest Period,
such Interest Period shall end on the last Business Day of such succeeding
calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and the rulings
issued thereunder.
"Investment" means, with respect to any Person, any loan or advance to
such Person, any purchase or other acquisition of any shares of capital stock
(or other ownership or profit interest), warrants, rights, options, obligations
or other securities of such Person, any purchase or other acquisition of all or
substantially all of the property and assets of such Person or of any division,
branch or other unit of operation thereof, any capital contribution to such
Person or any other investment in such Person, including, without limitation,
any arrangement pursuant to which the investor incurs Indebtedness of the types
referred to in clause (i) or (j) of the definition of "Indebtedness" set forth
above in this Section 1.01 in respect of such Person.
"Lender Indemnified Costs" has the meaning specified in Section 7.05.
<PAGE>
12
"Lenders" means, collectively, each Initial Lender, each Assuming Lender
that shall become a party hereto pursuant to Section 2.16 or 2.17 and each
Person that shall become a party hereto pursuant to Section 8.07.
"Leverage Ratio" means, with respect to the Borrower and its Subsidiaries
for any period, the ratio of (a) all Indebtedness of the Borrower and its
Subsidiaries (calculating the amount of Indebtedness under or in respect of
Hedge Agreements on a net basis for all such agreements) as of the last day of
such period, determined on a Consolidated basis in accordance with GAAP, to (b)
Consolidated EBITDA for such period.
"Lien" means any lien, security interest or other charge or encumbrance of
any kind, or any other type of preferential arrangement in respect of any
property or assets or the rights or interests of any Person therein, including,
without limitation, the lien or retained security title of a conditional vendor
and any easement, right of way or other encumbrance on title to real property.
"Marketable Securities" means any of the following types of Investments,
to the extent owned by the Borrower or any of its Subsidiaries free and clear of
all Liens:
(a) readily marketable obligations issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof or obligations unconditionally guaranteed by the
full faith and credit of the Government of the United States of America, in
each case with a maturity of not more than 360 days from the date of
acquisition thereof;
(b) time deposits with, or insured certificates of deposit or
bankers' acceptances of, any commercial bank that (i) (A) is a Lender or
(B) is organized or, is a foreign branch of a commercial bank that is
organized, under the laws of the United States of America, any state
thereof or the District of Columbia or is the principal banking subsidiary
of a bank holding company organized under the laws of the United States of
America, any state thereof or the District of Columbia and is a member of
the Federal Reserve System, (ii) issues (or the parent of which issues)
commercial paper rated as described below in clause (d) of this definition
and (iii) has combined capital and surplus of at least $1,000,000,000, in
each case with a maturity of not more than one year from the date of
acquisition thereof;
(c) time deposits with, or insured certificates of deposit or
bankers' acceptances of, any commercial bank that (i) is a member of
Organization for Economic Cooperation and Development, (ii) issues long
term non-credit enhanced debt obligations rated at least "A-1" (or the then
equivalent grade) by Moody's or at least "A+" (or the then equivalent
grade) by S&P and (iii) has combined capital and surplus of at least
$1,000,000,000, in each case with a maturity of not more than one year from
the date of acquisition thereof;
(d) commercial paper issued by any Person organized under the laws of
any state of the United States of America and rated at least "Prime-1" (or
the then equivalent grade) by Moody's or at least "A-1" (or the then
equivalent grade) by S&P, in each case with a maturity of not more than 180
days from the date of acquisition thereof;
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13
(e) Investments, classified in accordance with GAAP as current assets
of the Borrower or any of its Subsidiaries, in money market investment
programs registered under the Investment Company Act of 1940, as amended,
which are administered by financial institutions that have the highest
rating obtainable from either Moody's or S&P, and the portfolios of which
are limited solely to Investments of the character and quality described in
clauses (a), (b) and (d) of this definition;
(f) repurchase agreements entered with any financial institution
organized under the laws of any state of the United States of America whose
(i) long term non-credit enhanced debt obligations are rated at least "A-2"
(or the then equivalent grade) by Moody's or at least "A" (or the then
equivalent grade) by S&P and (ii) commercial paper is rated as described
above in clause (d) of this definition, in each case with a maturity of not
more than 92 days from the date of acquisition thereof;
(g) general obligations issued or directly and fully guaranteed or
otherwise supported by the full taxation authority of any state of the
United States of America or any municipal corporation or other agency or
instrumentality thereof and rated at one of the two highest investment
grade ratings of Moody's or S&P, in each case with a maturity of not more
than 365 days from the date of acquisition thereof;
(h) general obligations of any state of the United States of America
or any municipal corporation or other agency or instrumentality thereof
which, based on the escrow, are rated as described above in clause (g) of
this definition and which have been irrevocably called for redemption and
advance refunded through the deposit in escrow of (i) readily marketable
obligation solely of the type described above in clause (a) of this
definition or (ii) other debt securities which are (A) not callable at the
option of the issuer thereof prior to their stated maturity, (B)
irrevocably pledged solely in support of the payment of all principal of
and interest on such general obligations and (C) in an aggregate principal
amount and with such stated rates of interest as shall be sufficient to pay
in full all principal of and interest and premiums, if any, on such general
obligations as the same become due and payable (as verified by independent
public accountants of recognized standing), in each case with a maturity of
not more than 365 days from the date of acquisition thereof;
(i) tax-exempt or tax adjustable rate preferred stock issued by a
Person organized under the laws of any state of the United States of
America whose long term non-credit enhanced debt obligations are rated at
least "A-2" (or the then equivalent grade) by Moody's or at least "A" (or
the then equivalent grade) by S&P, in each case with a maturity of not more
than 120 days from the date of acquisition thereof; and
(j) readily marketable obligations of any Person not otherwise
included in clauses (a) through (i) of this definition in an aggregate
amount of no more than $20,000,000 for all such obligations, so long as (i)
such Person is organized under the laws of any state of the United States
of America and (ii) each such obligation is rated at least "Aa+" (or the
then equivalent grade) by Moody's or at least "AA" (or the then equivalent
grade) by S&P, in each case with a maturity of not more than 92 days from
the date of acquisition thereof.
<PAGE>
14
"Material Adverse Change" means any material adverse change in the
business, financial condition, operations, properties or performance of the
Borrower and its Subsidiaries, taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, financial condition, operations, properties or performance of the
Borrower and its Subsidiaries, taken as a whole, (b) the rights and remedies of
the Administrative Agent or any Lender under this Agreement or any Note or (c)
the ability of the Borrower to perform its obligations under this Agreement or
any Note.
"Material Subsidiary" means, at any date of determination, any Subsidiary
of the Borrower that, either individually or together with its Subsidiaries,
taken as a whole, (a) accounted for more than 2% of the consolidated revenues of
the Borrower and its Subsidiaries for the most recently completed fiscal quarter
for which the Lenders have received Consolidated financial statements of the
Borrower and its Subsidiaries pursuant to Section 5.01(j)(i) or 5.01(j)(ii) or
(b) owned more than 2% of the Consolidated assets of the Borrower and its
Subsidiaries as of the last day of the most recently completed fiscal quarter
for which the Lenders have received Consolidated financial statements of the
Borrower and its Subsidiaries pursuant to Section 5.01(j)(i) or 5.01(j)(ii), in
each case determined in accordance with GAAP for such period.
"Maturity Date" means the earlier of (a) the second anniversary of the
Revolver Termination Date and (b) the date of termination in whole of the
aggregate Commitments pursuant to Section 2.05 or 6.01.
"Measurement Period" means, at any date of determination, the most
recently completed four consecutive fiscal quarters of the Borrower and its
Subsidiaries ending on or immediately prior to such date.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate is making or
accruing an obligation to make contributions, or has within any of the preceding
five plan years made or accrued an obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is subject to Title IV of ERISA and is
maintained for employees of the Borrower or any ERISA Affiliate and at least one
Person other than the Borrower and the ERISA Affiliates or (b) was so maintained
and in respect of which the Borrower or any ERISA Affiliate could reasonably be
expected to have liability under Section 4064 or 4069 of ERISA in the event such
plan has been or were to be terminated.
"Net Rental Expense" means, with respect to the Borrower and its
Subsidiaries for any period, (a) the aggregate amount of all rental payment
obligations of the Borrower and its Subsidiaries under or in respect of
operating leases of real or personal property during such period less (b) the
aggregate amount of all revenues received in cash by the Borrower or any of its
Subsidiaries from any sublessor of such operating leases and all such rental
payment obligations
<PAGE>
15
otherwise satisfied on behalf or in lieu of the Borrower or any of its
Subsidiaries, whether by a sublessor or any other Person during such period.
"Non-Consenting Lender" has the meaning specified in Section 2.17(b).
"Note" means a Revolving Credit Note or a Competitive Bid Note.
"Notice of Competitive Bid Borrowing" has the meaning specified in Section
2.03(a)(i).
"Notice of Revolving Credit Borrowing" has the meaning specified in
Section 2.02(a).
"NPL" means the National Priorities List under CERCLA.
"Other Taxes" has the meaning specified in Section 2.14(b).
"Payment Office" means, with respect to any Foreign Currency, such office
of Citibank as shall be designated by the Administrative Agent as such in a
written notice to the Borrower and the Lenders.
"PBGC" means the Pension Benefit Guaranty Corporation (or any successor
thereto).
"Performance Level" means Performance Level I, Performance Level II or
Performance Level III, as appropriate. For purposes of determining the
Performance Level at any date of determination, no change in the Performance
Level shall be effective until three Business Days after the date on which the
Administrative Agent receives financial statements pursuant to Section
5.01(j)(i) or 5.01(j)(ii) reflecting such change; provided, however, that if the
Borrower has not submitted to the Administrative Agent the information required
under this sentence within five Business Days after the date on which such
information is required under Section 5.01(j)(i) or 5.01(j)(ii), as the case may
be, the Performance Level shall be deemed to be at Performance Level III for so
long as such information has not been submitted.
"Performance Level I" means, at any date of determination, that the
Borrower and its Subsidiaries shall have maintained a Leverage Ratio of less
than 1.00:1 for the most recently completed Measurement Period prior to such
date.
"Performance Level II" means, at any date of determination, that (a) the
Performance Level does not meet the requirements of Performance Level I and (b)
the Borrower and its Subsidiaries shall have maintained a Leverage Ratio of less
than 2.50:1 for the most recently completed Measurement Period prior to such
date.
"Performance Level III" means, at any date of determination, that the
Performance Level does not meet the requirements of Performance Level I or
Performance Level II.
"Permitted Liens" means any of the following:
(a) Liens for taxes, assessments and governmental charges or levies
to the extent not required to be paid under Section 5.01(b);
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16
(b) Liens imposed by law, such as materialmen's, mechanics',
carriers', workmen's and repairmen's Liens and other similar Liens arising
in the ordinary course of business securing obligations (other than
Indebtedness for borrowed money) that (i) are not overdue for a period of
more than 90 days or (ii) are being contested in good faith and by proper
proceedings and as to which appropriate reserves are being maintained in
accordance with generally accepted accounting principles in effect from
time to time;
(c) pledges or deposits to secure obligations under workers'
compensation laws or other similar legislation (other than in respect of
employee benefit plans subject to ERISA) or to secure public or statutory
obligations;
(d) Liens securing the performance of, or payment in respect of,
bids, tenders, government contracts (other than for the repayment of
borrowed money), surety and appeal bonds and other obligations of a similar
nature incurred in the ordinary course of business;
(e) any interest or title of a lessor or sublessor and any
restriction or encumbrance to which the interest or title of such lessor or
sublessor may be subject that is incurred in the ordinary course of
business and, either individually or when aggregated with all other
Permitted Liens in effect on any date of determination, could not be
reasonably expected to have a Material Adverse Effect; and
(f) easements, rights of way, zoning restrictions and other
encumbrances on title to real property that do not, either individually or
in the aggregate, render title to the property encumbered thereby
unmarketable or materially and adversely affect the use of such property
for its present purposes.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture, limited or unlimited liability company or other entity, or a government
or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Preferred Stock" means, with respect to any Person, shares of capital
stock (or other ownership or profit interests) issued by such Person that are
entitled to a preference or priority over any other shares of capital stock (or
other ownership or profit interests) issued by such Person upon any distribution
of such Person's property and assets, whether by dividend or upon liquidation.
"Pro Rata Share" of an amount means, with respect to any Lender at any
time, the product of (a) a fraction the numerator of which is the amount of such
Lender's Commitment at such time and the denominator of which is the aggregate
Commitments of all of the Lenders at such time multiplied by (b) such amount.
"Redeemable" means, with respect to any capital stock or other ownership
or profit interest, Indebtedness or other right or obligation, any such right or
obligation that (a) the issuer has undertaken to redeem at a fixed or
determinable date or dates, whether by operation of a sinking fund or otherwise,
or upon the occurrence of a condition not solely within the control of the
issuer or (b) is redeemable at the option of the holder.
<PAGE>
17
"Reference Banks" means Citibank, The First National Bank of Chicago, Bank
of America National Trust and Savings Association and The Chase Manhattan Bank
(or, in each case, any successor in interest thereto) or, in the event that one
of such banks ceases to be a Lender hereunder at any time, any other commercial
bank designated by the Borrower and approved by the Required Lenders as
constituting a "Reference Bank" hereunder.
"Register" has the meaning specified in Section 8.07(d).
"Required Lenders" means, at any time, Lenders holding a majority in
interest of the aggregate unpaid principal amount of the Revolving Credit
Advances (determined in the case of any Revolving Credit Advances denominated in
a Foreign Currency by reference to the Equivalent thereof in US Dollars at such
time) owing to all Lenders at such time or, if no such principal amount is
outstanding at such time, Lenders holding a majority in interest of the
Commitments at such time.
"Responsible Bank Officer" means, with respect to any Lender, any officer
of such Lender holding at least the title of Vice President (or the equivalent
thereto) of such Lender and having direct and ongoing involvement in the credit
decisions made in respect of this Agreement and the Notes.
"Responsible Officer" means the Chief Executive Officer, Chief Financial
Officer, Treasurer or General Counsel of the Borrower or any other officer of
the Borrower responsible for overseeing and reviewing compliance with this
Agreement and the Notes.
"Revolver Termination Date" means the earlier of (a) May 28, 1999, subject
to the extension thereof pursuant to Section 2.17, and (b) the date of
termination in whole of the aggregate Commitments pursuant to Section 2.05 or
6.01; provided, however, that the Revolver Termination Date of any Lender that
is a Non-Consenting Lender to any requested extension pursuant to Section 2.17
shall be the Revolver Termination Date in effect immediately prior to the
applicable Extension Date for all purposes of this Agreement.
"Revolving Credit Advance" means an advance by a Lender to the Borrower as
part of a Revolving Credit Borrowing and refers to a Base Rate Advance or a
Eurocurrency Rate Advance (each of which shall be a "Type" of Revolving Credit
Advance).
"Revolving Credit Borrowing" means a borrowing consisting of simultaneous
Revolving Credit Advances in the same currency and of the same Type made by each
of the Lenders to the Borrower pursuant to Section 2.01.
"Revolving Credit Note" means a promissory note of the Borrower payable to
the order of any Lender, in substantially the form of Exhibit A-1 hereto,
evidencing the aggregate indebtedness of the Borrower to such Lender resulting
from the Revolving Credit Advances made by such Lender.
"S&P" means Standard & Poor's, a division of The McGraw-Hill Companies,
Inc.
"Single Employer Plan" means a single employer plan, as defined in Section
4001(a)(15) of ERISA, that (a) is subject to Title IV of ERISA and is maintained
for employees of the Borrower or any ERISA Affiliate and no Person other than
the Borrower and the ERISA Affiliates or (b) was
<PAGE>
18
so maintained and in respect of which the Borrower could reasonably be expected
to have liability under Section 4069 of ERISA in the event such plan has been or
were to be terminated.
"Sub-Agent" means Citibank International plc, as sub-agent for the
Revolving Credit Borrowings consisting of Eurocurrency Rate Advances.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, joint venture, limited or unlimited liability company, trust or
estate of which (or in which) more than 50% of:
(a) the issued and outstanding shares of capital stock having
ordinary voting power to elect a majority of the board of directors of such
corporation (irrespective of whether at the time shares of capital stock of
any other class or classes of such corporation shall or might have voting
power upon the occurrence of any contingency);
(b) the interest in the capital or profits of such limited or
unlimited liability company, partnership or joint venture; or
(c) the beneficial interest in such trust or estate, is at the time,
directly or indirectly, owned or controlled by such Person, by such Person
and one or more of its other Subsidiaries or by one or more of such
Person's other Subsidiaries.
"Taxes" has the meaning specified in Section 2.14(a).
"Term Loan Conversion Date" means the Revolver Termination Date on which
all Advances outstanding on such date are converted into a term loan pursuant to
Section 2.06.
"Term Loan Election" has the meaning specified in Section 2.06.
"Type" has the meaning specified in the definition of "Revolving Credit
Advances" set forth above in this Section 1.01.
"Unused Commitment" means, with respect to any Lender at any time, (a)
such Lender's Commitment at such time less (b) the sum of:
(i) the aggregate principal amount of all Revolving Credit Advances
made by such Lender (in its capacity as a Lender) and outstanding at such
time (determined in the case of any such Revolving Credit Advance
denominated in a Foreign Currency by reference to the Equivalent thereof in
US Dollars at such time); and
(ii) such Lender's Pro Rata Share of the aggregate principal amount
of all Competitive Bid Advances made by the Lenders and outstanding at such
time.
"US Dollars" and the "$" sign each mean the lawful currency of the United
States of America.
"Utilization Fee" has the meaning specified in Section 2.04(b).
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"Voting Stock" means shares of capital stock issued by a corporation,
or equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the happening of
such a contingency.
"Wholly-Owned Subsidiary" means, with respect to any Subsidiary of any
Person, the ownership of all of the outstanding shares of capital stock of (or
other ownership or profit interests in) such Subsidiary (other than any
director's qualifying shares or Investments by foreign nationals mandated by
applicable law) by such Person or one or more Wholly-Owned Subsidiaries of such
Person.
"Withdrawal Liability" has the meaning specified in Part I of Subtitle
E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement, in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including", the word "through" means "through
and including" and the words "to" and "until" each mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP; provided, however,
that, if any changes in accounting principles from those used in the preparation
of the Consolidated financial statements of the Borrower and its Subsidiaries
for the fiscal year of the Borrower ended December 31, 1997 (as is delivered to
the Lenders pursuant to Section 4.01(e)) occur by reason of the promulgation of
rules, regulations, pronouncements, opinions or other requirements of the
Financial Accounting Standards Board or the American Institute of Certified
Public Accountants (or successors thereto or agencies with similar functions)
and such changes would affect (or would result in a change in the method of
calculation of) any of the covenants set forth in Section 5.02 or 5.03, or any
of the defined terms related thereto contained in Section 1.01, then upon the
request of any party hereto, the Borrower, the Administrative Agent and the
Lenders shall enter into negotiations in good faith, if and to the extent
necessary, to amend in accordance with Section 8.01 all such covenants or terms
as would be affected by such changes in GAAP in such manner as would maintain
the economic terms of such covenants as in effect under this Agreement, prior to
giving effect to the occurrence of any such changes; and provided further,
however, that until the amendment of the covenants and the defined terms
referred to in the immediately preceding proviso becomes effective, all
covenants and defined terms shall be performed, observed and determined, and any
determination of compliance with any such covenant shall be made, as though no
such changes in accounting principles had been made and the Borrower shall
deliver to the Lenders, in addition to the Consolidated financial statements
otherwise required to be delivered to the Lenders under Sections 5.01(j)(i) and
5.01(j)(ii) during such period, a statement of reconciliation conforming such
Consolidated financial statements to GAAP prior to such changes.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
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20
SECTION 2.01. The Revolving Credit Advances. Each Lender severally
agrees, on the terms and conditions hereinafter set forth, to make Revolving
Credit Advances to the Borrower from time to time on any Business Day during the
period from the Effective Date until the Revolver Termination Date in an
aggregate amount for each such Advance (determined in the case of any Revolving
Credit Advance denominated in a Foreign Currency by reference to the Equivalent
thereof in US Dollars on the date of delivery of the related Notice of Revolving
Credit Borrowing) not to exceed at any time the Unused Commitment of such
Lender. Each Revolving Credit Borrowing shall be in an aggregate amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof (or, in the
case of a Revolving Credit Borrowing consisting of Revolving Credit Advances
denominated in a Foreign Currency, the Equivalent thereof in the Foreign
Currency in which such Revolving Credit Borrowing is denominated determined on
the date of delivery of the related Notice of Revolving Credit Borrowing) (or,
if a proposed Competitive Bid Borrowing is made on the same date as such
Revolving Credit Borrowing, such lesser amount as is equal to the amount by
which the aggregate amount of such Competitive Bid Borrowing requested by the
Borrower to be made on such date exceeds the aggregate amount of Competitive Bid
Advances offered to be made by the Lenders and accepted by the Borrower in
respect of such Competitive Bid Borrowing on such date) and shall consist of
Revolving Credit Advances of the same Type made on the same day by the Lenders
ratably according to their respective Commitments. Within the limits of each
Lender's Unused Commitment, the Borrower may borrow under this Section 2.01,
prepay pursuant to Section 2.10 and reborrow under this Section 2.01.
SECTION 2.02. Making the Revolving Credit Advances. (a) Each Revolving
Credit Borrowing shall be made on notice, given not later than 11:00 A.M. (New
York City time) on the third Business Day prior to the date of the proposed
Revolving Credit Borrowing in the case of a Revolving Credit Borrowing
consisting of Eurocurrency Rate Advances denominated in US Dollars, 4:00 P.M.
(London time) on the third day prior to the date of the proposed Revolving
Credit Borrowing in the case of a Revolving Credit Borrowing consisting of
Eurocurrency Rate Advances denominated in a Foreign Currency, or 11:00 A.M. (New
York City time) on the same Business Day as the day of the proposed Revolving
Credit Borrowing in the case of a Revolving Credit Borrowing consisting of Base
Rate Advances, by the Borrower to the Administrative Agent (and, in the case of
a Revolving Credit Borrowing consisting of Eurocurrency Rate Advances,
simultaneously to the Sub-Agent), which shall give to each Lender prompt notice
thereof by telecopier or telex. Each notice of a Revolving Credit Borrowing (a
"Notice of Revolving Credit Borrowing") shall be by telephone, confirmed
immediately in writing, or by telecopier or telex, in substantially the form of
Exhibit B-1 hereto, specifying therein the requested (i) date of such Revolving
Credit Borrowing (which shall be a Business Day), (ii) Type of Advances
comprising such Revolving Credit Borrowing, (iii) aggregate principal amount of
such Revolving Credit Borrowing and (iv) in the case of a Revolving Credit
Borrowing consisting of Eurocurrency Rate Advances, currency and initial
Interest Period for each such Revolving Credit Advance. Each Lender shall,
before 1:00 P.M. (New York City time) on the date of each such Revolving Credit
Borrowing consisting of Base Rate Advances or Eurocurrency Rate Advances
denominated in US Dollars, and 11:00 A.M. (London time) on the date of each such
Revolving Credit Borrowing consisting of Eurocurrency Rate Advances denominated
in a Foreign Currency, make available for the account of its Applicable Lending
Office to the Administrative Agent at the applicable Administrative Agent's
Account, in same day funds, such Lender's Pro Rata Share of such Revolving
Credit Borrowing. After the Administrative Agent's receipt of such funds and
upon fulfillment of the applicable conditions set forth in Article III, the
Administrative Agent will make such funds available to the Borrower at the
Administrative Agent's address set forth in Section 8.02(a) or the applicable
Payment Office, as the case may be.
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21
(b) Anything in Section 2.02(a) to the contrary notwithstanding, (i)
the Borrower may not select Eurocurrency Rate Advances for any Revolving Credit
Borrowing if the obligation of the Lenders to make Eurocurrency Rate Advances
shall then be suspended pursuant to Section 2.08 or 2.12 and (ii) Eurocurrency
Rate Advances may not be outstanding as part of more than ten separate Revolving
Credit Borrowings.
(c) Each Notice of Revolving Credit Borrowing shall be irrevocable and
binding on the Borrower. In the case of any Revolving Credit Borrowing that the
related Notice of Revolving Credit Borrowing specifies is to be comprised of
Eurocurrency Rate Advances, the Borrower shall indemnify each Lender against any
loss, cost or reasonable expense incurred by such Lender as a result of any
failure to fulfill on or before the date specified in the related Notice of
Revolving Credit Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss, cost or reasonable expense (excluding
any loss of anticipated profits) incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the
Revolving Credit Advance to be made by such Lender as part of such Revolving
Credit Borrowing when such Revolving Credit Advance, as a result of such
failure, is not made on such date.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Revolving Credit Borrowing that such Lender will
not make available to the Administrative Agent such Lender's Pro Rata Share of
such Revolving Credit Borrowing, the Administrative Agent may assume that such
Lender has made such Pro Rata Share available to the Administrative Agent on the
date of such Revolving Credit Borrowing in accordance with Section 2.02(a) and
the Administrative Agent may, in reliance upon such assumption, make a
corresponding amount available to the Borrower on such date. If and to the
extent that any Lender shall not have so made such Pro Rata Share available to
the Administrative Agent, such Lender and the Borrower severally agree to pay or
to repay to the Administrative Agent forthwith on demand such corresponding
amount, together with interest thereon, for each day from the date such amount
is made available to the Borrower until the date such amount is paid or repaid
to the Administrative Agent, at (i) in the case of the Borrower, the interest
rate applicable at such time to Revolving Credit Advances comprising such
Revolving Credit Borrowing and (ii) in the case of such Lender, the higher of
(i) the Federal Funds Rate and (ii) the cost of funds incurred by the
Administrative Agent in respect of such amount. If such Lender shall pay to the
Administrative Agent such corresponding amount, such amount so paid shall
constitute such Lender's Revolving Credit Advance as part of such Revolving
Credit Borrowing for all purposes of this Agreement.
(e) The failure of any Lender to make the Revolving Credit Advance to
be made by it as part of any Revolving Credit Borrowing shall not relieve any
other Lender of its obligation, if any, hereunder to make its Revolving Credit
Advance on the date of such Revolving Credit Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the Revolving Credit
Advance to be made by such other Lender on the date of any Revolving Credit
Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each Lender severally
agrees that the Borrower may request Competitive Bid Borrowings under this
Section 2.03 denominated in US Dollars from time to time on any Business Day
during the period from the date hereof until the date occurring seven days prior
to the scheduled Revolver Termination Date in the manner set forth below. Each
Lender may elect (but shall not be obligated to) to make one or more Competitive
Bid Offers in response to a request by the Borrower for a Competitive Bid
Borrowing, and the aggregate outstanding principal amount of the Competitive Bid
Advances made by any Lender at any time may exceed the Commitment of such Lender
at such time; provided that, following the making of each Competitive Bid
Borrowing, the aggregate
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22
principal amount of all Advances (determined in the case of any Revolving Credit
Advances denominated in a Foreign Currency by reference to the Equivalent
thereof in US Dollars at such time) outstanding at such time shall not exceed
the aggregate Commitments at such time (determined without regard to any
Competitive Bid Reduction in effect at such time).
(i) The Borrower shall request a Competitive Bid Borrowing by
delivering notice of such request to each of the Lenders and the
Administrative Agent, by telecopier or telex, not later than 10:45 A.M.
(New York City time) on the day of the proposed Competitive Bid Borrowing
(which shall be a Business Day). Each notice of a Competitive Bid Borrowing
(a "Notice of Competitive Bid Borrowing") shall be in substantially the
form of Exhibit B-2 hereto, specifying therein (A) the proposed date of
such proposed Competitive Bid Borrowing (which shall be a Business Day),
(B) the requested aggregate amount of such proposed Competitive Bid
Borrowing (which shall be at least $3,000,000 or an integral multiple of
$500,000 in excess thereof), (C) the requested maturity date for repayment
of each Competitive Bid Advance to be made as part of such proposed
Competitive Bid Borrowing (which maturity date may not be earlier than the
date occurring one Business Day after the date of such Competitive Bid
Borrowing or later than the scheduled Revolver Termination Date then in
effect), (D) whether or not the Competitive Bid Advances comprising such
proposed Competitive Bid Borrowing may be prepaid and, if so, whether with
or without penalty, (E) the proposed interest payment date or dates
relating thereto and (F) the other terms, if any, to be applicable to such
proposed Competitive Bid Borrowing. Each Notice of Competitive Bid
Borrowing shall be irrevocable and binding on the Borrower.
(ii) Each Lender may, if, in its sole discretion, it elects to do so,
irrevocably make one or more Competitive Bid Offers to the Borrower as part
of such proposed Competitive Bid Borrowing, by notifying the Borrower and
the Administrative Agent, by telex or telecopier, not later than 11:30 A.M.
(New York City time) on the date of such proposed Competitive Bid
Borrowing, of the following: (A) the minimum amount and maximum amount of
each Competitive Bid Advance that such Lender would be willing to make as
part of such proposed Competitive Bid Borrowing; (B) the rate or rates of
interest for each such Competitive Bid Advance (in each case which shall be
fixed rates per annum); and (C) such Lender's Applicable Lending Office
with respect to each such Competitive Bid Advance. If any Lender shall
elect not to make a Competitive Bid Offer as part of a proposed Competitive
Bid Borrowing, such Lender shall so notify the Borrower not later than
11:30 A.M. (New York City time) on the date of the proposed Competitive Bid
Borrowing, and such Lender shall not be obligated to, and shall not, make
any Competitive Bid Advance as part of such Competitive Bid Borrowing;
provided that the failure by any Lender to give such notice shall not cause
such Lender to be obligated to make any Competitive Bid Advance as part of
such proposed Competitive Bid Borrowing.
(iii) The Borrower shall, in turn, before 12:30 P.M. (New York City
time) on the date of a proposed Competitive Bid Borrowing, either:
(A) cancel such Competitive Bid Borrowing by giving each of the
Lenders and the Administrative Agent notice to that effect, and such
Competitive Bid Borrowing shall not be made; or
(B) accept one or more of the Competitive Bid Offers made by any
Lender or Lenders, in its sole discretion but subject to the next two
succeeding sentences, by giving notice to the Lender or Lenders who
made such Competitive Bid Offers (and simultaneous
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23
notice thereof to the Administrative Agent) of the amount of each
Competitive Bid Advance to be made by each Lender as part of such
Competitive Bid Borrowing (in each case which amount shall be equal to
or greater than the minimum amount, and equal to or less than the
maximum amount, notified to the Borrower by such Lender for such
Competitive Bid Advance in its related Competitive Bid Offer), and
reject any remaining Competitive Bid Offers made by the Lenders by
giving notice to that effect to the Lender or Lenders who made such
Competitive Bid Offer (and simultaneous notice thereof to the
Administrative Agent); provided, however, that the Borrower may not
accept Competitive Bid Offers that, in the aggregate, exceed the
amount of the requested Competitive Bid Borrowing specified in the
related Notice of Competitive Bid Borrowing. The Borrower shall accept
the Competitive Bid Offers made by any Lender or Lenders in order of
the lowest to the highest rates of interest offered by such Lenders
for a particular Competitive Bid Borrowing; provided, however, that if
any Lender includes any material conditions or qualifications in any
of its Competitive Bid Offers other than those provided for under the
terms of the related Notice of Competitive Bid Borrowing, the Borrower
may reject such Competitive Bid Offer on the basis of such additional
conditions or qualifications regardless of the rate or rates of
interest included therein. If two or more Lenders have offered the
same rate of interest for a particular Competitive Bid Borrowing and
the amount of accepted Competitive Bid Offers is less than the
aggregate amount of such Competitive Bid Offers, the amount to be
borrowed at such rate of interest shall be allocated among such
Lenders ratably according to the amount that each such Lender offered
at such rate of interest.
If the Borrower accepts one or more of the Competitive Bid Offers made by
any Lender or Lenders pursuant to subclause (iii)(B) of this Section
2.03(a), such notice of acceptance shall be irrevocable and binding on the
Borrower.
(iv) Each Lender that is to make a Competitive Bid Advance as part of
any such Competitive Bid Borrowing shall, before 2:30 P.M. (New York City
time) on the date of such Competitive Bid Borrowing, make available for the
account of its Applicable Lending Office to the Administrative Agent at the
Administrative Agent's Account, in same day funds, such Lender's portion of
such Competitive Bid Borrowing. Upon fulfillment of the applicable
conditions set forth in Article III and after receipt by the Administrative
Agent of such funds, the Administrative Agent will make such funds
available to the Borrower at the Administrative Agent's address set forth
in Section 8.02(a) or at such account as the Borrower shall designate in
writing to the Administrative Agent and the Lenders for such purpose.
Promptly after (i) each Competitive Bid Borrowing, the Borrower will notify
each Lender of the amount of such Competitive Bid Borrowing, the fixed
rates of interest at which each Competitive Bid Advance comprising part of
such Competitive Bid Borrowing were made, the corresponding Competitive Bid
Reduction resulting therefrom and the dates upon which such Competitive Bid
Reduction commenced and will terminate and (ii) the prepayment of any
Competitive Bid Borrowing by the Borrower, the Administrative Agent will
notify each Lender of the amount and date of each such prepayment and the
amount, if any, of the corresponding Competitive Bid Reduction remaining
after giving effect thereto.
(b) Within the limits and on the conditions set forth in this Section
2.03, the Borrower may from time to time borrow under Section 2.03(a), repay
pursuant to Section 2.06(b) or prepay pursuant to Section 2.03(d), and reborrow
under Section 2.03(a).
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(c) The Borrower shall have no right to prepay any principal amount of
any Competitive Bid Advance unless, and then only on the terms, specified by the
Borrower in the Notice of Competitive Bid Borrowing delivered pursuant to
Section 2.03(a)(i) and set forth in the Competitive Bid Note evidencing such
Competitive Bid Advance.
(d) The Borrower shall pay interest on the unpaid principal amount of
each Competitive Bid Advance from the date of such Competitive Bid Advance to
the date the principal amount of such Competitive Bid Advance is repaid in full,
at the rate of interest for such Competitive Bid Advance specified by the Lender
making such Competitive Bid Advance in its notice with respect thereto delivered
pursuant to Section 2.03(a)(ii), payable on the interest payment date or dates
specified by the Borrower in the Notice of Competitive Bid Borrowing delivered
pursuant to Section 2.03(a)(i) and provided in the Competitive Bid Note
evidencing such Competitive Bid Advance.
(e) The indebtedness of the Borrower to which any Competitive Bid
Borrowing is made resulting from each Competitive Bid Advance made to the
Borrower as part of such Competitive Bid Borrowing shall be evidenced by a
separate Competitive Bid Note of the Borrower, payable to the order of the
Lender making such Competitive Bid Advance.
SECTION 2.04. Fees. (a) Facility Fee. The Borrower agrees to pay to
the Administrative Agent, for the account of each Lender, a facility fee (the
"Facility Fee") on the average daily amount of such Lender's Commitment (whether
used or unused) from the date of this Agreement in the case of each Initial
Lender and from the effective date specified in the Assignment and Acceptance or
the Assumption Agreement, as the case may be, pursuant to which it became a
Lender in the case of each other Lender until, in each case, the Revolver
Termination Date or, if the Borrower has made the Term Loan Election pursuant to
Section 2.06(a) on or prior to such date, the Maturity Date, at a rate per annum
equal to the Applicable Percentage in effect from time to time, payable in
arrears quarterly on the tenth day of each July, October, January and April,
commencing July 10, 1998 and on the Revolver Termination Date or, if the
Borrower has made the Term Loan Election pursuant to Section 2.06(a) on or prior
to such date, the Maturity Date.
(b) Utilization Fee. The Borrower agrees to pay to the Administrative
Agent, for the account of each Lender, for each calendar month in which (i) the
average daily aggregate principal amount of the sum of (A) all Advances
outstanding hereunder during such calendar month and (B) all advances
outstanding under the Five-Year Credit Agreement during such calendar month
exceeds (ii) 50% of the sum of (A) the average daily aggregate Commitments
during such calendar month and (B) the average daily aggregate commitments of
the lenders under the Five-Year Credit Agreement during such calendar month, a
utilization fee (the "Utilization Fee") on the average daily aggregate principal
amount of Advances outstanding during such calendar month at a rate per annum
equal to the Applicable Percentage in effect from time to time, payable in
arrears on each date on which the Facility Fee is payable pursuant to Section
2.04(a). For all purposes of this Section 2.04(b), the aggregate principal
amount of any Revolving Credit Advances denominated in a Foreign Currency and
outstanding hereunder on any day shall be determined by reference to the
Equivalent thereof in US Dollars on such day, and the aggregate principal amount
of any advances denominated in a currency other than US Dollars and outstanding
under the Five Year Credit Agreement on any day shall be determined by reference
to the Equivalent (as defined in the Five-Year Credit Agreement) thereof in US
Dollars on such day.
(c) Administrative Agent's Fees. The Borrower shall pay to the
Administrative Agent for its own account such fees as may from time to time be
agreed between the Borrower and the Administrative Agent.
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SECTION 2.05. Termination or Reduction of the Commitments. (a)
Optional. The Borrower shall have the right, upon at least three Business Days'
notice to the Administrative Agent, to terminate in whole or reduce ratably in
part the aggregate Unused Commitments of the Lenders; provided that each partial
reduction shall be in an aggregate amount of $5,000,000 or an integral multiple
of $1,000,000 in excess thereof or, if less, the aggregate amount of all
Commitments at such time.
(b) Mandatory. On the Revolver Termination Date, if the Borrower has
made the Term Loan Election in accordance with Section 2.06(a) prior to such
date, and from time to time thereafter upon each prepayment of the Advances, the
aggregate Commitments of the Lenders shall be automatically and permanently
reduced on a pro rata basis by an amount equal to the amount by which (i) the
aggregate Commitments immediately prior to such reduction exceeds (ii) the
aggregate unpaid principal amount of all Advances (determined in the case of any
Revolving Credit Advances denominated in a Foreign Currency by reference to the
Equivalent thereof in US Dollars on such date) outstanding at such time.
SECTION 2.06. Repayment of Advances. (a) Revolving Credit Advances.
The Borrower shall, subject to the next succeeding sentence, repay to the
Administrative Agent, for the ratable account of the Lenders, on the Revolver
Termination Date the aggregate principal amount of all Revolving Credit Advances
outstanding on such date. The Borrower may, upon not less than 15 days' notice
to the Administrative Agent, elect (the "Term Loan Election") to convert all of
the Revolving Credit Advances outstanding on the Revolver Termination Date in
effect at such time into a term loan which the Borrower shall repay in full
ratably to the Lenders on the Maturity Date; provided that the Term Loan
Election may not be exercised if a Default has occurred and is continuing on the
date of notice of the Term Loan Election or on the date on which the Term Loan
Election is to be effected. All Revolving Credit Advances converted to a term
loan pursuant to this Section 2.06(a) shall continue to constitute Revolving
Credit Advances except that the Borrower may not reborrow pursuant to Section
2.01 after all or any portion of such Revolving Credit Advances have been
prepaid pursuant to Section 2.10.
(b) Competitive Bid Advances. The Borrower shall repay to the
Administrative Agent, for the account of each Lender that has made a Competitive
Bid Advance, the aggregate outstanding principal amount of each Competitive Bid
Advance made and owing to such Lender on the earlier of (i) the maturity date
therefor, specified in the related Notice of Competitive Bid Borrowing delivered
pursuant to Section 2.03(a)(i) and provided in the Competitive Bid Note
evidencing such Competitive Bid Advance, and (ii) the Revolver Termination Date.
SECTION 2.07. Interest on Revolving Credit Advances. (a) Scheduled
Interest. The Borrower shall pay interest on the unpaid principal amount of each
Revolving Credit Advance owing to each Lender from the date of such Revolving
Credit Advance until such principal amount shall be paid in full, at the
following rates per annum:
(i) Base Rate Advances. During such periods as such Revolving Credit
Advance is a Base Rate Advance, a rate per annum equal at all times to the
sum of (A) the Base Rate in effect from time to time and (B) the Applicable
Margin in effect from time to time, payable in arrears quarterly on the
tenth day of each July, October, January and April during such periods and
on the date such Base Rate Advance shall be Converted or paid in full.
(ii) Eurocurrency Rate Advances. During such periods as such Revolving
Credit Advance is a Eurocurrency Rate Advance, a rate per annum equal at
all times during each Interest
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26
Period for such Revolving Credit Advance to the sum of (A) the Eurocurrency
Rate for such Interest Period for such Revolving Credit Advance and (B) the
Applicable Margin in effect from time to time during such Interest Period,
payable in arrears on the last day of such Interest Period and, if such
Interest Period has a duration of more than three months, on each day that
occurs during such Interest Period every three months from the first day of
such Interest Period and on the date such Eurocurrency Rate Advance shall
be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the continuance
of an Event of Default under Section 6.01(a), the Borrower shall pay interest
on:
(i) the principal amount of each Revolving Credit Advance owing to
each Lender that is not paid when due, payable in arrears on the dates
referred to in Section 2.07(a)(i) or 2.07(a)(ii), at a rate per annum equal
at all times to 2% per annum above the rate per annum required to be paid
on such Revolving Credit Advance pursuant to Section 2.07(a)(i) or
2.07(a)(ii), as applicable;
(ii) the principal amount of each Competitive Bid Advance owing to any
Lender that is not paid when due, payable in arrears on the date or dates
on which interest is payable on such Competitive Bid Advance, at a rate per
annum equal at all times to 2% per annum above the rate per annum required
to be paid on such Competitive Bid Advance, under the terms of the
Competitive Bid Note evidencing such Competitive Bid Advance; and
(iii) to the fullest extent permitted by applicable law, the amount of
any interest, fees or other amounts owing to the Administrative Agent or
any Lender under this Agreement or any Note that is not paid when due, from
the date such amount shall be due until such amount shall be paid in full,
payable in arrears on the date such amount shall be paid in full and on
demand, at a rate per annum equal at all times to 2% per annum above the
rate per annum required to be paid on Base Rate Advances pursuant to
Section 2.07(a)(i).
(c) Additional Interest on Eurocurrency Rate Advances. The Borrower
shall pay to each Lender, so long as and to the extent such Lender shall be
required under regulations of the Board of Governors of the Federal Reserve
System to maintain reserves with respect to liabilities or assets consisting of
or including Eurocurrency Liabilities, additional interest on the unpaid
principal amount of each Eurocurrency Rate Advance owing to such Lender, from
the date of such Eurocurrency Rate Advance until such principal amount is paid
in full, at an interest rate per annum equal at all times to the remainder
obtained by subtracting (a) the Eurocurrency Rate for the applicable Interest
Period for such Eurocurrency Rate Advance from (b) the rate obtained by dividing
such Eurocurrency Rate by a percentage equal to 100% minus the Eurocurrency Rate
Reserve Percentage of such Lender for such Interest Period, payable on each date
on which interest is otherwise payable on such Eurocurrency Rate Advance. Such
Lender shall as soon as practicable provide notice to the Administrative Agent
and the Borrower of any such additional interest arising in connection with any
such Eurocurrency Rate Advance, which notice shall be conclusive and binding,
absent demonstrable error.
SECTION 2.08. Interest Rate Determination and Availability. (a) Each
Reference Bank agrees to furnish to the Administrative Agent timely information
for the purpose of determining the Eurocurrency Rate in accordance with clause
(b) of the definition thereof set forth in Section 1.01. If any one of the
Reference Banks shall not furnish such timely information to the Administrative
Agent for the purpose of determining any such interest rate, the Administrative
Agent shall determine such interest rate on the basis of timely information
furnished by the remaining Reference Banks. The Administrative Agent
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27
shall give prompt notice to the Borrower and the Lenders of the applicable
interest rate determined by the Administrative Agent for purposes of Section
2.07(a)(i) or 2.07(a)(ii), and the rate, if any, furnished by each Reference
Bank for the purpose of determining the applicable interest rate under Section
2.07(a)(ii).
(b) If, with respect to any Eurocurrency Rate Advances, the Required
Lenders notify the Administrative Agent that (i) they are unable to obtain
matching deposits in the London interbank market at or about 11:00 A.M. (London
time) on the second Business Day before the making of a Revolving Credit
Borrowing in sufficient amounts to fund their respective Revolving Credit
Advances as a part of such Revolving Credit Borrowing during such Interest
Period or (ii) the Eurocurrency Rate for any Interest Period for such Advances
will not adequately reflect the cost to such Required Lenders of making, funding
or maintaining their respective Eurocurrency Rate Advances for such Interest
Period, the Administrative Agent shall forthwith so notify the Borrower and the
Lenders, whereupon (A) each Eurocurrency Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, (1) if such Eurocurrency
Rate Advance is denominated in US Dollars, Convert into a Base Rate Advance and
(2) if such Eurocurrency Rate Advance is denominated in a Foreign Currency, be
exchanged for an Equivalent amount of US Dollars and Converted into a Base Rate
Advance and (B) the obligation of the Lenders to make Eurocurrency Rate Advances
shall be suspended until the Administrative Agent shall notify the Borrower and
the Lenders that the circumstances causing such suspension no longer exist;
provided that, if the circumstances set forth in clause (ii) of this Section
2.08(b) are applicable, the Borrower may elect, by notice to the Administrative
Agent and the Lenders, to continue such Eurocurrency Rate Advances in such
Foreign Currency for Interest Periods having a duration of one month, which
Advances shall thereafter bear interest at a rate per annum equal to the
Applicable Margin plus, for each Lender, the cost to such Lender (expressed as a
rate per annum) of funding its Eurocurrency Rate Advances by whatever means it
reasonably determines to be appropriate. Each Lender shall certify its cost of
funds for each such Interest Period to the Administrative Agent and the Borrower
as soon as practicable (but in any event not later than ten Business Days after
the first day of such Interest Period).
(c) If the Borrower shall fail to select the duration of any Interest
Period for any Eurocurrency Rate Advances made or to be made in accordance with
the provisions contained in the definition of "Interest Period" set forth in
Section 1.01, the Administrative Agent will forthwith so notify the Borrower and
the Lenders and such Eurocurrency Rate Advances will automatically, on the last
day of the then existing Interest Period therefor, Convert into Eurocurrency
Rate Advances denominated in the same currency for an Interest Period of one
month.
(d) On the date on which the aggregate unpaid principal amount of
Eurocurrency Rate Advances comprising any Revolving Credit Borrowing shall be
reduced, by payment or prepayment or otherwise, to less than $1,500,000, such
Advances shall automatically (i) if such Eurocurrency Rate Advances are
denominated in US Dollars, Convert into Base Rate Advances and (ii) if such
Eurocurrency Rate Advances are denominated in a Foreign Currency, be exchanged
for an Equivalent amount of US Dollars and Converted into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any Event of
Default under Section 6.01(a), (i) each Eurocurrency Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
(A) if such Eurocurrency Rate Advance is denominated in US Dollars, Convert into
a Base Rate Advance and (B) if such Eurocurrency Rate Advance is denominated in
a Foreign Currency, be exchanged for an Equivalent amount of US Dollars and
Converted into a Base Rate Advance and (ii) the obligation of the Lenders to
make, or to Convert Advances into, Eurocurrency Rate Advances shall be
suspended.
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28
(f) If fewer than two Reference Banks furnish timely information to
the Administrative Agent for determining the Eurocurrency Rate for any
Eurocurrency Rate Advances in accordance with clause (b) of the definition
thereof set forth in Section 1.01:
(i) the Administrative Agent shall forthwith notify the Borrower and
the Lenders that the interest rate cannot be determined for such
Eurocurrency Rate Advances;
(ii) each such Eurocurrency Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, (A) if such
Eurocurrency Rate Advance is denominated in US Dollars, Convert into a Base
Rate Advance and (B) if such Eurocurrency Rate Advance is denominated in a
Foreign Currency, be exchanged for an Equivalent amount of US Dollars and
Converted into a Base Rate Advance (or if such Advance is then a Base Rate
Advance, will continue as a Base Rate Advance); and
(iii) the obligation of the Lenders to make Eurocurrency Rate Advances
or to Convert Revolving Credit Advances into Eurocurrency Rate Advances
shall be suspended until the Administrative Agent shall notify the Borrower
and the Lenders that the circumstances causing such suspension no longer
exist.
SECTION 2.09. Optional Conversion of Revolving Credit Advances. The
Borrower may on any Business Day, upon notice given to the Administrative Agent
not later than 11:00 A.M. (New York City time) on the third Business Day prior
to the date of the proposed Conversion and subject to the provisions of Sections
2.08, 2.09 and 2.12, Convert all Revolving Credit Advances of one Type
comprising the same Borrowing into Revolving Credit Advances of the other Type;
provided, however, that:
(a) No Conversion of Revolving Credit Advances shall result (i) in any
Revolving Credit Borrowing failing to comply with the second sentence of
Section 2.01 or in more separate Revolving Credit Borrowings than are
permitted under Section 2.02(b) or (ii) in the aggregate principal amount
of all Advances outstanding at the time of such Conversion exceeding the
aggregate Commitments at such time;
(b) No Eurocurrency Rate Advances of one currency shall be Converted
into Eurocurrency Rate Advances of another currency; and
(c) In the case of any Conversion of Eurocurrency Rate Advances of one
Interest Period into Eurocurrency Rate Advances of another Interest Period
or of Eurocurrency Rate Advances into Base Rate Advances other than on the
last day of an Interest Period therefor, the Borrower shall be obligated to
reimburse the Lenders in respect thereof pursuant to Section 8.04(c).
Each such notice of a Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion (which shall be a Business Day), (ii)
the Revolving Credit Advances to be Converted, and (iii) if such Conversion is
into Eurocurrency Rate Advances, the currency and the duration of the initial
Interest Period for each such Advance. Each notice of Conversion shall be
irrevocable and binding on the Borrower.
SECTION 2.10. Prepayments of Revolving Credit Advances. (a) Optional.
The Borrower may, upon at least the same Business Day's notice to the
Administrative Agent received not later than 11:00 A.M. (New York City time) in
the case of a Revolving Credit Borrowing consisting of Base Rate Advances,
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29
and upon at least two Business Days' notice to the Administrative Agent received
not later than 11:00 A.M. (New York City time) in the case of a Revolving Credit
Borrowing consisting of Eurocurrency Rate Advances, stating the proposed date
and aggregate principal amount of the prepayment, and if such notice is given
the Borrower shall, prepay the outstanding principal amount of the Revolving
Credit Advances comprising part of the same Revolving Credit Borrowing in whole
or ratably in part, together with accrued interest to the date of such
prepayment on the principal amount so prepaid; provided, however, that (a) each
partial prepayment shall be in an aggregate amount of $5,000,000 or an integral
multiple of $1,000,000 in excess thereof (or, in each case, the Equivalent
thereof in the Foreign Currency in which such Revolving Credit Borrowing is
denominated, determined on the date on which the related notice of prepayment is
given) and (b) in the case of any such prepayment of a Eurocurrency Rate Advance
other than on the last day of the then existing Interest Period therefor, the
Borrower shall be obligated to reimburse the Lenders in respect thereof pursuant
to Section 8.04(c).
(b) Mandatory Prepayments. If, on any date, the Administrative Agent
notifies the Borrower that (i) the sum of (A) the aggregate principal amount of
all Advances denominated in US Dollars and outstanding on such date and (B) the
Equivalent in US Dollars of the aggregate principal amount of all Advances
denominated in Foreign Currencies and outstanding on such date exceeds (ii) 101%
of the aggregate Commitments on such date, then the Borrower agrees to prepay,
as soon as practicable and in any event within two Business Days of such notice,
the principal amount of any Advances then outstanding in an amount sufficient to
reduce such sum to an amount not to exceed 100% of the aggregate Commitments on
such date, together with (i) any interest accrued to the date of such prepayment
on the aggregate principal amount of Advances so prepaid and (ii) in the case of
any prepayment of Eurocurrency Rate Advances other than on the last day of the
then existing Interest Period therefor, any amounts which the Borrower is
required to reimburse the Lenders for in respect thereof pursuant to Section
8.04(c). The Administrative Agent shall give prompt notice of any prepayment
required under this Section 2.10(b) to the Borrower and the Lenders, and shall
provide prompt notice to the Borrower of any such notice of required prepayment
received by it from any Lender.
SECTION 2.11. Increased Costs. (a) If, due to either (i) the
introduction of or any change (other than any change by way of imposition or
increase of reserve requirements included in the Eurocurrency Rate Reserve
Percentage) in or in the interpretation of any law or regulation after the date
of this Agreement or (ii) the compliance with any directive, guideline or
request from any central bank or other governmental authority that becomes
effective or is made after the date of this Agreement including, without
limitation, any agency of the European Economic and Monetary Union or similar
monetary or multinational authority (whether or not having the force of law),
there shall be any increase in the cost to any Lender of agreeing to make or
making, funding or maintaining Eurocurrency Rate Advances (excluding for
purposes of this Section 2.11 any such increased costs resulting from (i) Taxes
or Other Taxes (as to which Section 2.14 shall govern) and (ii) changes in the
basis of taxation of overall net income or overall gross income by the United
States or by the foreign jurisdiction or state under the laws of which such
Lender is organized or has its Applicable Lending Office or any political
subdivision thereof), then the Borrower agrees to pay to the Administrative
Agent for the account of such Lender from time to time, upon demand by such
Lender (with a copy of such demand to the Administrative Agent) at any time
within 120 days after the date on which a Responsible Bank Officer of such
Lender knows or has reason to know of its right to additional compensation under
this Section 2.11(a), additional amounts sufficient to compensate such Lender
for such increased cost; provided, however, that if any such Lender fails to
deliver such demand within such 120-day period, such Lender shall only be
entitled to additional compensation for any such costs incurred from and after
the date that is 120 days prior to the date such Lender delivers such demand;
and provided further, however, that before making any such demand, each Lender
agrees to use reasonable efforts (consistent with
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30
its internal policy and legal and regulatory restrictions) to designate a
different Applicable Lending Office if the making of such a designation would
avoid the need for, or reduce the amount of, such increased cost and would not,
in the reasonable judgment of such Lender, be otherwise disadvantageous to such
Lender. A certificate as to the amount of such increased cost, submitted to the
Borrower and the Administrative Agent by such Lender, shall be conclusive and
binding for all purposes, absent demonstrable error.
(b) If any Lender determines that compliance with any law or
regulation, or any directive, guideline or request from any central bank or
other governmental authority that becomes effective or is made after the date of
this Agreement (whether or not having the force of law) affects or would affect
the amount of capital required or expected to be maintained by such Lender or
any corporation controlling such Lender and that the amount of such capital is
increased by or based upon the existence of such Lender's commitment to lend
hereunder and other commitments of this type, then Borrower agrees to pay to the
Administrative Agent for the account of such Lender, upon demand by such Lender
(with a copy of such demand to the Administrative Agent) at any time within 120
days after the date on which a Responsible Bank Officer of such Lender knows or
has reason to know of its right to additional compensation under this Section
2.11(b), additional amounts sufficient to compensate such Lender or such
corporation in the light of such circumstances, to the extent that such Lender
reasonably determines such increase in capital to be allocable to the existence
of such Lender's commitment to lend hereunder; provided, however, that if any
such Lender fails to deliver such demand within such 120-day period, such Lender
shall only be entitled to additional compensation for any such increases in
capital required from and after the date that is 120 days prior to the date such
Lender delivers such demand. A certificate as to such amounts submitted to the
Borrower and the Administrative Agent by such Lender shall be conclusive and
binding for all purposes, absent demonstrable error.
(c) Each Lender will promptly notify the Borrower and the
Administrative Agent of any event of which it has actual knowledge occurring
after the date of this Agreement that would entitle such Lender to additional
compensation under this Section 2.11. No Lender shall request any additional
compensation under this Section 2.11 unless it is generally making similar
requests of other borrowers similarly situated, and each Lender agrees to use a
reasonable basis for calculating amounts allocable to its commitment to lend or
its Advances hereunder.
SECTION 2.12. Illegality. Notwithstanding any other provision of this
Agreement, if any Lender shall notify the Administrative Agent that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Lender or its Eurocurrency
Lending Office to perform its obligations hereunder to make Eurocurrency Rate
Advances or to fund or maintain Eurocurrency Rate Advances, (i) each
Eurocurrency Rate Advance will automatically, on the last day of the Interest
Period then in effect therefor if permitted by applicable law or otherwise upon
demand, (A) if such Advance is a Eurocurrency Rate Advance denominated in US
Dollars, Convert into a Base Rate Advance and (B) if such Advance is a
Eurocurrency Rate Advance denominated in a Foreign Currency, be exchanged for an
Equivalent amount of US Dollars and Converted into a Base Rate Advance, and (ii)
the obligation of the Lenders to make Eurocurrency Rate Advances or to Convert
Revolving Credit Advances into Eurocurrency Rate Advances shall be suspended
until the Administrative Agent shall notify the Borrower and the Lenders that
the circumstances causing such suspension no longer exist; provided, however,
that before making any such demand, each Lender agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
designate a different Eurocurrency Lending Office if the making of such a
designation would allow such Lender or its Eurocurrency Lending Office to
continue to perform its obligations to make Eurocurrency Rate Advances or to
continue to fund or maintain Eurocurrency Rate
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31
Advances and would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender.
SECTION 2.13. Payments and Computations. (a) The Borrower shall make
each payment required to be made by it hereunder and under the Notes, except
with respect to principal of, interest on and other amounts relating to
Revolving Credit Advances denominated in a Foreign Currency, not later than
11:00 A.M. (New York City time) on the day when due in US Dollars to the
Administrative Agent at the applicable Administrative Agent's Account, in same
day funds. The Borrower shall make each payment required to be made by it
hereunder and under the Notes with respect to principal of, interest on and
other amounts relating to Revolving Credit Advances denominated in a Foreign
Currency not later than 11:00 A.M. (at the Payment Office for such Foreign
Currency) on the day when due in such Foreign Currency to the Administrative
Agent at the applicable Administrative Agent's Account, in same day funds. The
Administrative Agent will promptly thereafter cause to be distributed like funds
relating to the payment of principal or interest or the Facility Fee or the
Utilization Fee ratably (other than amounts payable pursuant to Section 2.02(c),
2.03, 2.07(c), 2.11, 2.14, 2.16, 2.17, 8.04 or 8.07) to the Lenders for the
account of their respective Applicable Lending Offices, and like funds relating
to the payment of any other amount payable to any Lender to such Lender for the
account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon its acceptance of an
Assignment and Acceptance and recording of the information contained therein in
the Register pursuant to Section 8.07(c), from and after the effective date
specified in such Assignment and Acceptance, the Administrative Agent shall make
all payments hereunder and under the Notes in respect of the interest assigned
thereby to the Lender assignee thereunder, and the parties to such Assignment
and Acceptance shall make all appropriate adjustments in such payments for
periods prior to such effective date directly between themselves. Upon any
Assuming Lender becoming a Lender hereunder as a result of a Commitment Increase
pursuant to Section 2.16 or an extension of the Revolver Termination Date then
in effect pursuant to Section 2.17, and upon the Administrative Agent's receipt
of such Lender's Assumption Agreement and recording the information contained
therein in the Register from and after the applicable Increase Date or Extension
Date, as the case may be, the Administrative Agent shall make all payments
hereunder and under the Notes in respect of the interest assumed thereby to the
Assuming Lender.
(b) All computations of interest based on clause (a) of the definition
of "Base Rate" set forth in Section 1.01 shall be made by the Administrative
Agent on the basis of a year of 365 or 366 days, as the case may be, and all
computations of interest based on the Eurocurrency Rate or the Federal Funds
Rate or in respect of Competitive Bid Advances and of Facility Fees and
Utilization Fees shall be made by the Administrative Agent, and all computations
of additional interest pursuant to Section 2.07(c) shall be made by a Lender, on
the basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest or fees are payable. Each determination by the
Administrative Agent (or, in the case of Section 2.07(c), by a Lender) of an
interest rate hereunder shall be conclusive and binding for all purposes, absent
demonstrable error.
(c) Whenever any payment hereunder or under the Notes shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or fees, as the case may be;
provided, however, that, if such extension would cause payment of interest on or
principal of Eurocurrency Rate Advances to be made in the next following
calendar month, such payment shall be made on the immediately preceding Business
Day.
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32
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which such payment is due to the Lenders
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the
Administrative Agent, each Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender, together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative
Agent, at the higher of (i) the Federal Funds Rate and (ii) the cost of funds
incurred by the Administrative Agent in respect of such amount.
(e) To the extent that the Administrative Agent receives funds for
application to the amounts owing by the Borrower under or in respect of this
Agreement or any Note in currencies other than the currency or currencies
required to enable the Administrative Agent to distribute funds to the Lenders
in accordance with the terms of this Section 2.13, the Administrative Agent
shall be entitled to convert or exchange such funds into US Dollars or into a
Foreign Currency, as the case may be, to the extent necessary to enable the
Administrative Agent to distribute such funds in accordance with the terms of
this Section 2.13; provided that the Borrower and each of the Lenders hereby
agree that the Administrative Agent shall not be liable or responsible for any
loss, cost or expense suffered by the Borrower or such Lender as a result of any
conversion or exchange of currencies effected pursuant to this Section 2.13(e)
or as a result of the failure of the Administrative Agent to effect any such
conversion or exchange; and provided further that the Borrower agrees to
indemnify the Administrative Agent for any and all losses, costs and reasonable
expenses incurred by the Administrative Agent for any conversion or exchange of
currencies (or the failure to convert or exchange any currencies) in accordance
with this Section 2.13(e).
SECTION 2.14. Taxes. (a) Any and all payments by the Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.13,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender and the Administrative
Agent, taxes imposed on its overall net income, and franchise taxes imposed on
it in lieu of net income taxes, by the jurisdiction under the laws of which such
Lender or the Administrative Agent, as the case may be, is organized or any
political subdivision thereof and, in the case of each Lender, taxes imposed on
its overall net income, and franchise taxes imposed on it in lieu of net income
taxes, by the jurisdiction of such Lender's Applicable Lending Office or any
political subdivision thereof (all such nonexcluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities in respect of payments
hereunder or under the Notes being collectively referred to as "Taxes"). If the
Borrower shall be required by applicable law to deduct any Taxes from or in
respect of any sum paid or payable hereunder or under any Note to any Lender or
the Administrative Agent, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.14) such Lender or
the Administrative Agent, as the case may be, receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the Borrower
shall make such deductions and (iii) the Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with applicable law. Within 30 days after the date of any payment of Taxes, the
Borrower shall furnish to the Administrative Agent, at its address referred to
in Section 8.02(a), the original or a certified copy of a receipt evidencing
payment thereof.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made
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33
hereunder or under the Notes or from the execution, delivery or registration of,
or any performance under, or otherwise with respect to, this Agreement or the
Notes (collectively, "Other Taxes").
(c) The Borrower agrees not to make, and not to permit any Person
acting on its behalf to make, any payments hereunder or under the Notes through
an account or branch outside the United States, and further agrees that no
payments hereunder or under the Notes shall be made on its behalf by a payor
that is not a United States person. For purposes of this Section 2.14(c) and
Section 2.14(e), the terms "United States" and "United States person" shall have
the meanings specified in Section 7701 of the Internal Revenue Code.
(d) The Borrower shall indemnify each Lender and the Administrative
Agent for the full amount of Taxes or Other Taxes (including, without
limitation, any taxes imposed by any jurisdiction on amounts payable under this
Section 2.14) imposed on or paid by such Lender or the Administrative Agent, as
the case may be, and any liability (including, without limitation, penalties,
interest and expenses) arising therefrom or with respect thereto. This
indemnification shall be made within 30 days from the date such Lender or the
Administrative Agent, as the case may be, makes written demand therefor.
(e) Each Lender organized under the laws of a jurisdiction outside the
United States shall (i) on or prior to the date of its execution and delivery of
this Agreement in the case of each Initial Lender and on the date of the
Assignment and Acceptance or the Assumption Agreement, as the case may be,
pursuant to which it becomes a Lender in the case of each other Lender and (ii)
from time to time thereafter upon the obsolescence of, or after a Responsible
Bank Officer obtains actual knowledge of the occurrence of an event or
circumstance necessitating a change in, the Internal Revenue Service forms
hereinafter referred to (but only so long as such Lender remains lawfully able
to do so), provide each of the Administrative Agent and the Borrower with two
original Internal Revenue Service forms 1001 or 4224, as appropriate, or any
successor or other form prescribed by the Internal Revenue Service, certifying
that such Lender is exempt from or entitled to a reduced rate of United States
withholding tax on payments pursuant to this Agreement or the Notes. If the
forms provided by a Lender at the time such Lender first becomes a party to this
Agreement indicates a United States interest withholding tax rate in excess of
zero, withholding tax at such rate shall be considered excluded from Taxes;
provided, however, that, if at the date of the Assignment and Acceptance or the
Assumption Agreement, as the case may be, pursuant to which a Lender assignee
becomes a party to this Agreement, the Lender assignor was entitled to payments
under Section 2.14(a) in respect of United States withholding tax with respect
to interest paid at such date, then, to such extent, the term "Taxes" shall
include (in addition to withholding taxes that may be imposed in the future or
other amounts otherwise includable in Taxes) United States withholding tax, if
any, applicable with respect to the Lender assignee on such date. If any form or
document referred to in this Section 2.14(e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service form 1001 or
4224, that the Lender reasonably considers to be confidential, the Lender shall
give notice thereof to the Borrower and shall not be obligated to include in
such form or document such confidential information; provided, however, that
notwithstanding any of the provisions of Section 2.14(d), such Lender shall not
be entitled to indemnification under Section 2.14(a) or 2.14(d) with respect to
Taxes imposed by the United States that become payable because such information
is not provided to the Borrower.
(f) Each Initial Lender hereby confirms as of the Effective Date, and
each other Lender hereby confirms as of the effective date of the Assignment and
Acceptance or the Assumption Agreement, as the case may be, pursuant to which it
became a Lender, in favor of the Administrative Agent, that either (i) such
Lender is not resident in the United Kingdom and is beneficially entitled to the
Advances and the
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34
interest thereon or (ii) such Lender is a bank as defined for the purposes of
Section 349 of the Income and Corporation Taxes Act of 1988 of the United
Kingdom and is beneficially entitled to the Advances and the interest thereon,
and each Lender hereby agrees to notify the Administrative Agent if there is any
change in its position from that set forth above in this Section 2.14(f).
(g) For any period with respect to which a Lender has failed to
provide the Borrower with the appropriate form described in Section 2.14(e)
(other than if such failure is due to a change in law occurring subsequent to
the date on which a form originally was required to be provided, or if such form
otherwise is not required under the first sentence of Section 2.14(e)),
notwithstanding any of the provisions of Section 2.14(d), such Lender shall not
be entitled to indemnification under Section 2.14(a) or 2.14(d) with respect to
Taxes imposed by the United States that become payable by reason of such
failure; provided, however, that should a Lender become subject to Taxes because
of its failure to deliver a form required hereunder, the Borrower shall take
such steps as the Lender shall reasonably request and, to the extent any such
steps require the expenditure of money, at the expense of such Lender, to assist
the Lender to recover such Taxes.
(h) Any Lender claiming any additional amounts payable pursuant to
this Section 2.14 agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Eurocurrency Lending Office if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender.
SECTION 2.15. Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
setoff, or otherwise) on account of the Revolving Credit Advances owing to it
(other than pursuant to Section 2.02(c), 2.07(c), 2.11, 2.14, 2.16, 2.17, 8.04
or 8.07) in excess of its ratable share of payments on account of the Revolving
Credit Advances obtained by all the Lenders, such Lender shall forthwith
purchase from the other Lenders such participations in the Revolving Credit
Advances owing to them as shall be necessary to cause such purchasing Lender to
share the excess payment ratably with each of them; provided, however, that if
all or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase price to the extent of
such recovery, together with an amount equal to such Lender's ratable share
(according to the proportion of (a) the amount of such Lender's required
repayment to (b) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 2.15
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of setoff) with respect to the participation as fully as if
such Lender were the direct creditor of the Borrower in the amount of the
participation.
SECTION 2.16. Increase in the Aggregate Commitments. (a) The Borrower
may, at any time but in any event not more than once in any calendar year prior
to the Revolver Termination Date, by notice to the Administrative Agent, request
that the aggregate amount of the Commitments be increased by $6,000,000 or an
integral multiple of $6,000,000 in excess thereof (each a "Commitment Increase")
to be effective as of a date that is at least 90 days prior to the scheduled
Revolver Termination Date then in effect (the "Increase Date") as specified in
the related notice to the Administrative Agent; provided, however, that (i) in
no event shall the aggregate amount of the Commitments at any time exceed
$105,000,000, (ii) the Borrower shall concurrently request that the aggregate
commitments of the lenders under the Five-Year Credit Agreement be ratably
increased based on the respective aggregate Commitments of the Lenders
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35
hereunder and the aggregate commitments of the lenders under the Five-Year
Credit Agreement, and such requested increase under the Five-Year Credit
Agreement shall become effective on the applicable Increase Date, (iii) no
Default or Event of Default shall have occurred and be continuing as of the date
of such request and (iv) all of the applicable conditions set forth in Article
III shall be satisfied as of the applicable Increase Date.
(b) The Administrative Agent shall promptly notify the Lenders of a
request by the Borrower for a Commitment Increase, which notice shall include
(i) the proposed amount of such requested Commitment Increase, (ii) the proposed
Increase Date and (iii) the date by which Lenders wishing to participate in the
Commitment Increase must commit to an increase in the amount of their respective
Commitments (the "Commitment Date"). Each Lender that is willing to participate
in such requested Commitment Increase (each an "Increasing Lender") shall, in
its sole discretion, give written notice to the Administrative Agent on or prior
to the Commitment Date of the amount by which it is willing to increase its
Commitment. If the Lenders notify the Administrative Agent that they are willing
to increase the amount of their respective Commitments by an aggregate amount
that exceeds the amount of the requested Commitment Increase, the requested
Commitment Increase shall be allocated among the Lenders willing to participate
therein in such amounts as are agreed between the Borrower and the
Administrative Agent.
(c) Promptly following each Commitment Date, the Administrative Agent
shall notify the Borrower as to the amount, if any, by which the Lenders are
willing to participate in the requested Commitment Increase. If the aggregate
amount by which the Lenders are willing to participate in any requested
Commitment Increase on any such Commitment Date is less than the requested
Commitment Increase, then the Borrower may extend offers to one or more Eligible
Assignees to participate in any portion of the requested Commitment Increase
that has not been committed to by the Lenders as of the applicable Commitment
Date; provided, however, that the Commitment of each such Eligible Assignee,
when aggregated with the commitment of such Person to lend under the Five-Year
Credit Agreement, shall in no event be less than $10,000,000.
(d) On each Increase Date, each Eligible Assignee that accepts an
offer to participate in a requested Commitment Increase in accordance with
Section 2.16(c) (each an "Increase Assuming Lender") shall become a Lender party
to this Agreement as of such Increase Date and the Commitment of each Increasing
Lender for such requested Commitment Increase shall be so increased by such
amount (or by the amount allocated to such Lender pursuant to the last sentence
of Section 2.16(b)) as of such Increase Date; provided, however, that the
Administrative Agent shall have received on or before such Increase Date the
following, each dated such date:
(i) (A) certified copies of resolutions of the board of directors of
the Borrower or the Executive Committee of such board approving the
Commitment Increase and the corresponding modifications to this Agreement,
(B) a certificate, signed by a duly authorized Responsible Officer of the
Borrower, stating that all of the applicable conditions in Article III have
been satisfied and (C) an opinion of counsel for the Borrower, in
substantially the form of Exhibit C hereto;
(ii) an Assumption Agreement from each Increase Assuming Lender, duly
executed by such Increase Assuming Lender, the Administrative Agent and the
Borrower; and
(iii) confirmation from each Increasing Lender of the increase in the
amount of its Commitment in a writing satisfactory to the Borrower and the
Administrative Agent.
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36
On each Increase Date, upon fulfillment of the conditions set forth in the
immediately preceding sentence of this Section 2.16(d), the Administrative Agent
shall notify the Lenders (including, without limitation, each Assuming Lender)
and the Borrower, on or before 1:00 P.M. (New York City time), by telecopier or
telex, of the occurrence of the Commitment Increase to be effected on such
Increase Date and shall record in the Register the relevant information with
respect to each Increasing Lender and each Increase Assuming Lender on such
date. In addition, on each Increase Date, each of the Increasing Lenders and the
Increase Assuming Lenders will purchase and assume from the other Lenders such
interests in the Revolving Credit Advances made by such other Lenders and
outstanding on such Increase Date as shall be necessary so that, after giving
effect to such purchases and assumptions, each of the Lenders (including the
Increasing Lenders and the Increase Assuming Lenders) will hold their respective
Pro Rata Shares of all Revolving Credit Advances outstanding on such Increase
Date (such purchases and assumptions to be effected by each of the Increasing
Lenders and the Increase Assuming Lenders making an amount equal to such
respective Pro Rata Shares available for the accounts of their Applicable
Lending Offices to the Administrative Agent at the applicable Administrative
Agent's Accounts, in same day funds). The Borrower hereby agrees to each of the
purchases and assumptions described in the immediately preceding sentence.
SECTION 2.17. Extension of Revolver Termination Date. (a) At least 30
days but not more than 45 days prior to the scheduled Revolver Termination Date
then in effect, the Borrower, by written notice to the Administrative Agent, may
request an extension of such Revolver Termination Date for a period of 364 days
from its then scheduled expiration; provided, however, that the Borrower shall
not have made the Term Loan Election for Advances outstanding on such Revolver
Termination Date prior to such time. The Administrative Agent shall promptly
notify each Lender of such request, and each Lender shall in turn, in its sole
discretion, not earlier than 30 days but at least 20 days prior to the scheduled
Revolver Termination Date then in effect, notify the Administrative Agent in
writing as to whether such Lender will consent to such extension. If any Lender
shall fail to notify the Administrative Agent in writing of its consent to, or
refusal of, any such request for extension of the Revolver Termination Date at
least 20 days prior to the scheduled Revolver Termination Date then in effect,
such Lender shall be deemed to be a Non-Consenting Lender with respect to such
request. The Administrative Agent shall notify the Borrower in writing not later
than 15 days prior to the scheduled Revolver Termination Date then in effect of
the decision of the Lenders regarding the Borrower's request for an extension of
such Revolver Termination Date. It is understood and agreed that no Lender shall
have any obligation whatsoever to agree to any request made by the Borrower for
an extension of the Revolver Termination Date.
(b) If all of the Lenders consent in writing to any such request in
accordance with subsection (a) of this Section 2.17, upon fulfillment of the
applicable conditions set forth in Article III, the Revolver Termination Date in
effect at such time shall, effective as at such Revolver Termination Date (the
"Extension Date"), be extended for a period of 364 days from such Extension
Date. If Lenders holding at least a majority in interest of the aggregate
Commitments at such time (after giving effect to any assumptions of the
Commitments of Non-Consenting Lenders in accordance with subsection (c) of this
Section 2.17) consent in writing to any such request in accordance with
subsection (a) of this Section 2.17, the Revolver Termination Date in effect at
such time shall, upon fulfillment of the applicable conditions set forth in
Article III, effective as at the applicable Extension Date, be extended as to
those Lenders that so consented (each a "Consenting Lender") but shall not be
extended as to any other Lender (each a "Non-Consenting Lender"). To the extent
that the Revolver Termination Date is not extended as to any Lender pursuant to
this Section 2.17 and the Commitment of such Lender is not assumed in accordance
with subsection (c) of this Section 2.17 on or prior to the applicable Extension
Date, the Commitment of such Non-Consenting Lender shall automatically terminate
in whole on such unextended Revolver Termination Date without any further notice
or other action by the Borrower, such Lender or any other Person; provided that
such Non-
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37
Consenting Lender's rights under Sections 2.07(c), 2.11, 2.14 and 8.04, and its
obligations under Section 7.05, shall survive the Revolver Termination Date for
such Lender as to matters occurring prior to such Extension Date.
(c) If less than all of the Lenders consent to any such request
pursuant to subsection (a) of this Section 2.17, the Borrower may arrange for
one or more Consenting Lenders or other Eligible Assignees to assume, effective
as of the Extension Date, any Non-Consenting Lender's Commitment and all of the
rights and obligations of such Non-Consenting Lender under this Agreement
thereafter arising (each Eligible Assignee assuming the Commitment of one or
more Non-Consenting Lenders pursuant to this Section 2.17 being an "Extension
Assuming Lender"), without recourse to or warranty by, or expense to, such Non-
Consenting Lender; provided, however, that the Commitment of any such Extension
Assuming Lender, when aggregated with the commitment of such Person to lend
under the Five-Year Credit Agreement, shall in no event be less than $10,000,000
unless the Commitment of such Non-Consenting Lender hereunder and the commitment
of such Non-Consenting Lender to lend under the Five-Year Credit Agreement at
such time is less than $10,000,000, in which case such Extension Assuming Lender
shall assume all of such lesser amount; and provided further that:
(i) the Consenting Lenders and Extension Assuming Lenders shall
collectively have paid to the Non-Consenting Lenders the aggregate
principal amount of, and any interest accrued and unpaid to the effective
date of such assumption on, the outstanding Advances, if any, of such Non-
Consenting Lenders;
(ii) any accrued and unpaid Facility Fees and Utilization Fees owing
to such Non-Consenting Lenders as of the effective date of such assumption,
and all additional cost and expense reimbursements and indemnification
payments payable to such Non-Consenting Lenders, and all other accrued and
unpaid amounts owing to such Non-Consenting Lenders under this Agreement
and the Notes, as of the effective date of such assumption, shall have been
paid to such Non-Consenting Lenders by the Borrower or such Consenting
Lenders and Extension Assuming Lenders; and
(iii) with respect to any such Extension Assuming Lender, the
applicable processing and recordation fee required under Section 8.07(a)
shall have been paid; and
provided further that such Non-Consenting Lender's rights under Sections
2.07(c), 2.11, 2.14 and 8.04, and its obligations under Section 7.05, shall
survive such substitution as to matters occurring prior to the date of
substitution. At least three Business Days prior to each Extension Date, (A)
each such Extension Assuming Lender, if any, shall have delivered to the
Borrower and the Administrative Agent an Assumption Agreement, duly executed by
such Extension Assuming Lender, such Non-Consenting Lender, the Borrower and the
Administrative Agent, (B) each such Consenting Lender, if any, shall have
delivered written confirmation satisfactory to the Borrower and the
Administrative Agent as to any increase in the amount of its Commitment
resulting from its assumption of one or more Commitments of the Non-Consenting
Lenders and (C) each Non-Consenting Lender being replaced pursuant to this
Section 2.17(c) shall have delivered to the Administrative Agent, to be held in
escrow on behalf of such Non-Consenting Lender until the payment in full of all
amounts owing to such Non-Consenting Lender under clauses (i) through (iii) of
this Section 2.17, any Note or Notes held by such Non-Consenting Lender. Upon
the payment or prepayment of all amounts referred to in clauses (i), (ii) and
(iii) of this Section 2.17(c), each such Consenting Lender or Extension Assuming
Lender, as of the Extension Date, will be substituted for the applicable Non-
Consenting Lender(s) under this Agreement and shall be a Lender for all purposes
of this Agreement,
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38
without any further acknowledgment by or the consent of any of the other
Lenders, and the obligations of each such Non-Consenting Lender hereunder shall,
by the provisions hereof, be released and discharged.
(d) If the Required Lenders (after giving effect to any assumptions
pursuant to subsection (c) of this Section 2.17) consent in writing to a
requested extension (whether by execution and delivery of an Assumption
Agreement or otherwise) not later than one Business Day prior to an Extension
Date, the Administrative Agent shall so notify the Borrower, and, upon
fulfillment of the applicable conditions set forth in Article III, the Revolver
Termination Date then in effect shall be extended for the 364-day period
described in subsection (a) of this Section 2.17, and all references in this
Agreement and in the Notes to the "Revolver Termination Date" shall, with
respect to each Consenting Lender and each Assuming Lender for such Extension
Date, refer to the Revolver Termination Date as so extended. Promptly following
each Extension Date, the Administrative Agent shall notify the Lenders
(including, without limitation, each Assuming Lender) of the extension of the
scheduled Revolver Termination Date in effect immediately prior thereto and
shall thereupon record in the Register the relevant information with respect to
each such Consenting Lender and each such Extension Assuming Lender.
SECTION 2.18. Substitution of Currency. If the euro or any other
single or unified European currency is implemented pursuant to the commencement
of the third stage of the Economic and Monetary Union (as contemplated in the
Treaty on European Union) or any other change in any Foreign Currency occurs
pursuant to any other applicable law, rule or regulation of any governmental,
monetary or multinational authority, this Agreement (including, without
limitation, the definition of Eurocurrency Rate) will be amended to the extent
determined by the Administrative Agent (acting reasonably and in consultation
with the Borrower) to be necessary to reflect the change in currency and to put
the Lenders and the Borrower in the same position, so far as possible, that they
would have been in if no implementation of the euro or such other single or
unified European currency or other change in such Foreign Currency, as the case
may be, had occurred.
SECTION 2.19. Use of Proceeds. The proceeds of the Advances shall be
available, and the Borrower agrees that it shall use such proceeds, solely for
general corporate purposes (including, without limitation, acquisitions of the
shares of capital stock of (or other ownership or profit interests in), or all
or any portion of the property and assets of, any Person, and the refinancing of
other Indebtedness of the Borrower) not otherwise prohibited under the terms of
this Agreement.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01
and 2.03. Sections 2.01 and 2.03 of this Agreement shall become effective on and
as of the first date (the "Effective Date") on which the following conditions
precedent have been satisfied:
(a) There shall have occurred no Material Adverse Change since
December 31, 1997.
(b) There shall exist no action, suit, investigation, litigation,
arbitration or proceeding (including, without limitation, any Environmental
Action) affecting the Borrower or any of its Subsidiaries pending or, to
the knowledge of the Borrower, threatened before any court, governmental
agency or arbitrator that (i) either individually or in the aggregate,
could be reasonably
<PAGE>
39
expected to have a Material Adverse Effect other than the matters described
on Schedule 3.01(b) hereto (the "Disclosed Litigation") or (ii) purports to
adversely affect the legality, validity or enforceability of this Agreement
or any Note or the consummation of the transactions contemplated hereby;
and there shall have been no adverse change in the status, or financial
effect on the Borrower or any of its Subsidiaries, of the Disclosed
Litigation from that described on Schedule 3.01(b) hereto.
(c) All governmental and third party consents and approvals necessary
in connection with this Agreement and the Notes and with the transactions
contemplated hereby shall have been obtained (without the imposition of any
conditions that are not reasonably acceptable to the Lenders) and shall
remain in effect; and no law or regulation shall be applicable in the
reasonable judgment of the Lenders that restrains, prevents or imposes
materially adverse conditions on this Agreement or any Note or upon any of
the transactions contemplated hereby.
(d) All accrued fees and reasonable out-of-pocket expenses of the
Administrative Agent (including, without limitation, all reasonable accrued
fees and expenses of counsel for the Administrative Agent for which a
reasonably detailed invoice has been delivered to the Borrower at least two
Business Days prior to the Effective Date) shall have been paid in full.
(e) All amounts owing by the Borrower or any of its Subsidiaries
under either of the Existing Credit Agreements shall have been, or
concurrently with any initial Borrowing made on the Effective Date shall
be, paid in full, and all commitments of the lenders thereunder shall have
been, or concurrently with any initial Borrowing made on the Effective Date
shall be, terminated in accordance with the terms of such Agreement.
(f) On the Effective Date, the following statements shall be true and
the Administrative Agent shall have received for the account of each Lender
a certificate signed by a duly authorized Responsible Officer of the
Borrower, dated such date, stating that:
(i) The representations and warranties contained in Section
4.01 are correct on and as of the Effective Date, as though made on
and as of such date;
(ii) No event has occurred and is continuing, or shall occur as
a result of the occurrence of the Effective Date, that constitutes a
Default; and
(iii) The conditions precedent set forth in subsections (a)
through (f) of this Section 3.01 have been satisfied.
(g) The Administrative Agent shall have received on or before the
Effective Date the following, each dated such date, in form and substance
satisfactory to the Administrative Agent and (except for the Revolving
Credit Notes) in sufficient copies for each Lender:
(i) The Revolving Credit Notes to the order of each of the
Lenders, respectively.
(ii) A certificate of the Secretary or an Assistant Secretary
of the Borrower certifying (A) appropriate resolutions of the Board of
Directors of the Borrower approving this Agreement and the Notes, and
of all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to this Agreement and the
Notes and
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(B) the names and true signatures of the officers of the Borrower
authorized to sign this Agreement and the Notes and the other
documents to be delivered by the Borrower hereunder.
(iii) Favorable opinions of an Assistant General Counsel for the
Borrower, in substantially the form of Exhibit D-1 hereto, and of
Sidley & Austin, special counsel for the Borrower, in substantially
the form of Exhibit D-2 hereto.
(iv) A favorable opinion of Shearman & Sterling, counsel for
the Administrative Agent.
SECTION 3.02. Conditions Precedent to Each Revolving Credit Borrowing.
The obligation of each Lender to make a Revolving Credit Advance on the occasion
of each Revolving Credit Borrowing shall be subject to the conditions precedent
that the Effective Date shall have occurred and on the date of such Revolving
Credit Borrowing the following statements shall be true (and each of the giving
of the applicable Notice of Revolving Credit Borrowing and the acceptance by the
Borrower of the proceeds of such Revolving Credit Borrowing shall constitute a
representation and warranty by the Borrower that on the date of such Revolving
Credit Borrowing such statements are true):
(a) The representations and warranties contained in Section 4.01
(except for the representation and warranty set forth in clause (i) of
Section 4.01(f)) are correct on and as of the date of such Revolving Credit
Borrowing, before and after giving effect to such Revolving Credit
Borrowing and to the application of the proceeds therefrom, as though made
on and as of such date; and
(b) No event has occurred and is continuing, or would result from
such Revolving Credit Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
SECTION 3.03. Conditions Precedent to Each Competitive Bid Borrowing.
The obligation of each Lender that is to make a Competitive Bid Advance as part
of any Competitive Bid Borrowing is subject to the conditions precedent that (a)
the Administrative Agent shall have received the written confirmatory Notice of
Competitive Bid Borrowing with respect thereto, (b) on or before the date of
such Competitive Bid Borrowing, but prior to such Competitive Bid Borrowing, the
Administrative Agent shall have received a Competitive Bid Note payable to the
order of such Lender for each of the one or more Competitive Bid Advances to be
made by such Lender as part of such Competitive Bid Borrowing, dated such date
and in a principal amount equal to the principal amount of the Competitive Bid
Advance to be evidenced thereby and otherwise on such terms as were agreed to
for such Competitive Bid Advance in accordance with Section 2.03, and (c) on the
date of such Competitive Bid Borrowing the following statements shall be true
(and each of the giving of the applicable Notice of Competitive Bid Borrowing
and the acceptance by the Borrower of the proceeds of such Competitive Bid
Borrowing shall constitute a representation and warranty by the Borrower that on
the date of such Competitive Bid Borrowing such statements are true):
(i) The representations and warranties contained in Section 4.01
(except for the representation and warranty set forth in clause (i) of
Section 4.01(f)) are correct on and as of the date of such Competitive Bid
Borrowing, before and after giving effect to such Competitive Bid Borrowing
and to the application of the proceeds therefrom, as though made on and as
of such date; and
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(ii) No event has occurred and is continuing, or would result from
such Competitive Bid Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
SECTION 3.04. Conditions Precedent to Each Increase Date and Each
Extension Date. The obligation of each Increasing Lender and each Increase
Assuming Lender to effect a Commitment Increase pursuant to Section 2.16 and of
each Consenting Lender and each Extension Assuming Lender to extend the Revolver
Termination Date then in effect pursuant to Section 2.17 is subject to the
conditions precedent that (a) the Administrative Agent shall have accepted all
of the Assumption Agreements of the Assuming Lenders and received all of the
written confirmations of increases in the Commitments of the Consenting Lenders
for such Increase Date or such Extension Date, as the case may be, and, in the
case of any such Extension Date, all of the Non-Consenting Lenders shall have
received all of the amounts required to have been paid to them under Section
2.17(c) on or prior to such Extension Date, (b) on or before such Increase Date
or such Extension Date, the Administrative Agent shall have received Revolving
Credit Notes payable, in the case of each Commitment Increase, to the order of
each Increasing Lender and each Increase Assuming Lender, and, in the case of
each extension of the Revolver Termination Date, to the order of each applicable
Consenting Lender and each Extension Assuming Lender, and, in each case, dated
such date and in a principal amount equal to the Commitment of such Lender on
such date (after giving effect to the related Commitment Increase or extension
of the Revolver Termination Date, as the case may be), and (c) on such Increase
Date or such Extension Date, as the case may be, the following statements shall
be true (and a duly authorized Responsible Officer of the Borrower shall certify
the completeness and accuracy of such statements to the Administrative Agent and
the Lenders on and as of such Increase Date or such Extension Date):
(i) There shall have occurred no Material Adverse Change since
December 31, 1997;
(ii) The representations and warranties contained in Section 4.01
shall be correct on and as of such Increase Date or such Extension Date,
before and after giving effect to such date, as though made on and as of
such date; and
(iii) No event shall have occurred and be continuing, or shall result
from the occurrence of such Increase Date or such Extension Date, that
constitutes a Default.
SECTION 3.05. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Administrative Agent responsible for the transactions contemplated by
this Agreement shall have received notice from such Lender prior to the date
that the Borrower, by notice to the Lenders, designates as the proposed
Effective Date, specifying its objection thereto. The Administrative Agent shall
promptly notify the Lenders of the occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
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42
SECTION 4.01. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) The Borrower and each of the Material Subsidiaries (i) are
corporations, limited partnerships or limited liability companies duly
organized, validly existing and, to the extent applicable, in good standing
under the laws of their respective jurisdictions of organization, (ii) to
the extent applicable, are duly qualified and in good standing as foreign
corporations, limited partnerships or limited liability companies in each
other jurisdiction in which they own or lease property or assets or in
which the conduct of their respective businesses requires them to so
qualify or be licensed, except where the failure to so qualify or be
licensed, either individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect, and (iii) have all requisite
power and authority to own or lease and operate their respective property
and assets and to carry on their respective businesses as conducted.
(b) The execution, delivery and performance by the Borrower of this
Agreement and the Notes, and the consummation of the transactions
contemplated hereby, are within the Borrower's corporate, partnership or
limited liability company powers, have been duly authorized by all
necessary action, and do not contravene (i) the Borrower's charter or by-
laws (or similar organizational documents) or (ii) any law, regulation,
judgment, order, writ, injunction, decree, determination or award or any
contractual restriction binding on or affecting the Borrower.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body or any other
third party is required for the due execution, delivery and performance by
the Borrower of this Agreement or any Note.
(d) This Agreement has been, and each of the Notes when delivered
hereunder will have been, duly executed and delivered by the Borrower. This
Agreement is, and each of the Notes when delivered hereunder will be, the
legal, valid and binding obligation of the Borrower, enforceable against
the Borrower in accordance with their respective terms, except to the
extent that the enforceability thereof may be limited by the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws now or hereafter in effect relating to or affecting creditors' rights
generally or by general principles of equity.
(e) (i) The Consolidated balance sheet of the Borrower and its
Subsidiaries as at December 31, 1997, and the related Consolidated
statements of income, retained earnings and cash flows of the Borrower and
its Subsidiaries for the fiscal year then ended, accompanied by an
unqualified opinion of Arthur Andersen & Co., independent public
accountants, and (ii) the Consolidated balance sheet of the Borrower and
its Subsidiaries as at March 31, 1998, and the related Consolidated
statements of income, retained earnings and cash flows of the Borrower and
its Subsidiaries for the three months then ended, duly certified by the
Chief Financial Officer of the Borrower, copies of all of which have been
furnished to each Lender, fairly present, subject, in the case of such
balance sheet as at March 31, 1998 and such related statements of income,
retained earnings and cash flows for the three months then ended, to year-
end audit adjustments, the Consolidated financial condition of the Borrower
and its Subsidiaries as at such dates and the Consolidated results of the
operations of the Borrower and its Subsidiaries for the period ended on
such dates, all in accordance with generally accepted accounting principles
consistently applied.
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(f) There is no action, suit, investigation, litigation, arbitration
or proceeding (including, without limitation, any Environmental Action)
affecting the Borrower or any of its Subsidiaries pending or, to the
knowledge of the Borrower, threatened before any court, governmental agency
or arbitrator that (i) either individually or in the aggregate, could be
reasonably expected to have a Material Adverse Effect other than the
Disclosed Litigation or (ii) purports to adversely affect the legality,
validity or enforceability of this Agreement or any Note or the
consummation of the transactions contemplated hereby.
(g) The Borrower is not engaged in the business of extending credit
for the purpose of purchasing or carrying "margin stock" (within the
meaning of Regulation U of the Board of Governors of the Federal Reserve
System). Following application of the proceeds of each Advance, not more
than 25% of the value of the property and assets of the Borrower, either
individually or together with its Subsidiaries, taken as a whole, subject
to the provisions of Section 5.02(a) or subject to any restriction
contained in any agreement or instrument between the Borrower and any
Lender or any Affiliate of any Lender relating to Indebtedness and within
the scope of Section 6.01(d) will be "margin stock" (within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System).
(h) All information, exhibits and reports furnished by or on behalf
of the Borrower or any of its Subsidiaries to the Administrative Agent and
the Lenders in connection with the negotiation of, or pursuant to the terms
of, this Agreement or any Note do not, considered as a whole, contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements made therein, in light of the
circumstances under which any such statements were made, not misleading (it
being understood that with respect to projections, such projections are
good faith estimates based on assumptions believed to be reasonable by the
Borrower at the time of delivery of such projections to the Administrative
Agent and the Lenders and that no assurances can be given that the results
set forth in the projections will actually be obtained).
(i) No ERISA Event has occurred or could reasonably be expected to
occur with respect to any Plan.
(j) To the extent an annual report (Form 5500 Series) is required to
be filed, Schedule B (Actuarial Information) to the most recent such annual
report for each Plan, copies of which have been filed with the Internal
Revenue Service and furnished to the Lenders, is complete and accurate and
fairly presents the funding status of such Plan; and since the date of such
Schedule B there has been no material adverse change in such funding
status.
(k) Neither the Borrower nor any ERISA Affiliate (i) has incurred or
could reasonably be expected to incur any Withdrawal Liability with respect
to any Multiemployer Plan or (ii) has been notified by the sponsor of a
Multiemployer Plan that such Multiemployer Plan is in reorganization or has
been terminated, within the meaning of Title IV of ERISA; and, to the
knowledge of the Borrower, no such Multiemployer Plan could reasonably be
expected to be in reorganization or to be terminated, within the meaning of
Title IV of ERISA.
(l) The operations and properties of the Borrower and its
Subsidiaries comply in all material respects with all applicable
Environmental Laws and Environmental Permits.
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44
(m) None of the properties owned or operated by the Borrower or its
Subsidiaries is listed or, to the knowledge of the Borrower, is proposed
for listing on the NPL or on the CERCLIS or any analogous foreign, state or
local list; there are no and never have been any underground or aboveground
storage tanks or any surface impoundments, septic tanks, pits, sumps or
lagoons in which Hazardous Materials are being or have been treated, stored
or disposed on any property owned or operated by the Borrower or any of its
Subsidiaries that, either individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
(n) Neither the Borrower nor its Subsidiaries is undertaking, and has
not completed, either individually or together with other potentially
responsible parties, any investigation, assessment or remedial or response
action relating to any actual or threatened release, discharge or disposal
of Hazardous Materials at any site, location or operation, either
voluntarily or pursuant to the order of any governmental or regulatory
authority or the requirements of any Environmental Law, that, either
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
(o) The proceeds of the Advances shall be available, and the Borrower
agrees that it shall use such proceeds, solely for general corporate
purposes (including, without limitation to, acquisitions of the shares of
capital stock of (or other ownership or profit interests in), or all or any
portion of the property and assets of any Person, and the refinancing of
other Indebtedness of the Borrower) not otherwise prohibited under the
terms of this Agreement.
(p) Neither the Borrower nor any of the Material Subsidiaries is an
"investment company", or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company" (each as defined in
the Investment Company Act of 1940, as amended). Neither the making of any
Advances nor the application of the proceeds or repayment thereof by the
Borrower, nor the consummation of the other transactions contemplated
hereby, will violate any provision of such Act or any rule, regulation or
order of the Securities and Exchange Commission thereunder.
(q) The Advances and all related obligations of the Borrower under
this Agreement and the Notes rank pari passu with all other unsecured
obligations of the Borrower that are not, by their terms, expressly
subordinate to such other obligations of the Borrower.
(r) The Borrower has (i) initiated a review and assessment of all
areas within its and each of its Subsidiaries' business and operations
(including, to the extent the Borrower deems appropriate, those affected by
suppliers, vendors and customers) that could be adversely affected by the
"Year 2000 Problem" (that is, the risk that computer applications used by
the Company or any of its Subsidiaries may be unable to recognize and
perform properly date-sensitive functions involving certain dates prior to
and any date after December 31, 1999), (ii) developed a plan for addressing
the Year 2000 Problem on a timely basis, and (iii) to date, has initiated
implementation of that plan. Based on the foregoing, the Borrower believes
that all computer applications that are material to its or any of its
Subsidiaries' business and operations are reasonably expected on a timely
basis to be able to perform properly date-sensitive functions for all dates
before and after January 1, 2000 (that is, be "Year 2000 compliant"),
except to the extent that a failure to do so could not reasonably be
expected to have Material Adverse Effect.
<PAGE>
45
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, with all applicable laws, rules, regulations and
orders, such compliance to include, without limitation, compliance with
ERISA and Environmental Laws, except where the failure to so comply, either
individually or in the aggregate, could not reasonably be expected to have
a Material Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent,
(i) all taxes, assessments and governmental charges or levies imposed upon
it or upon its property and (ii) all lawful claims that, if unpaid, might
by law become a Lien upon its property; provided, however, that neither the
Borrower nor any of its Subsidiaries shall be required to pay or discharge
any such tax, assessment, charge, levy or claim that is being contested in
good faith and by proper proceedings and as to which appropriate reserves
are being maintained, unless and until any Lien resulting therefrom
attaches to its property and enforcement, collection, execution, levy or
foreclosure proceedings shall have been commenced with respect to one or
more such taxes, assessments, charges, levies or claims that, either
individually or in the aggregate, are material.
(c) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such risks
as the Borrower believes in good faith is usually carried by companies
engaged in similar businesses and owning similar properties in the same
general areas in which the Borrower or such Subsidiary operates.
(d) Preservation of Corporate Existence, Etc. Preserve and maintain,
and cause each of its Subsidiaries to preserve and maintain, its existence,
rights (charter and statutory) and franchises; provided, however, that the
Borrower and its Subsidiaries may consummate any merger or consolidation
otherwise permitted under Section 5.02(c); and provided further that
neither the Borrower nor any of its Subsidiaries shall be required to
preserve any right or franchise if management of the Borrower shall
determine in good faith that the preservation thereof is no longer
desirable in the conduct of the business or the continued operations of the
Borrower or such Subsidiary, as the case may be, and that the loss thereof
is not disadvantageous in any material respect to the Borrower and its
Subsidiaries taken as a whole, or to the Lenders.
(e) Visitation Rights. At any reasonable time and from time to time,
upon notice to the Borrower, permit the Administrative Agent or any of the
Lenders or any agents or representatives thereof to examine and make copies
of and abstracts from the records and books of account, and visit the
properties, of the Borrower and/or any of its Subsidiaries, and to discuss
the affairs, finances and accounts of the Borrower and/or any of its
Subsidiaries with any of their officers or directors and with their
independent public accountants; provided, however, that so long as no
Default under Section 6.01(a) or 6.01(e) or Event of Default has occurred
and is continuing, the Borrower shall
<PAGE>
46
have the right to be present at all such discussions and all such visits
shall be at the Administrative Agent's or the applicable Lender's expense.
(f) Keeping of Books. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which full and correct entries
shall be made of all financial transactions and the assets and business of
the Borrower and each such Subsidiary in accordance with generally accepted
accounting principles in effect from time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve, and cause
each of its Subsidiaries to maintain and preserve, all of its material
properties that are used or useful in the conduct of its business in good
working order and condition, ordinary wear and tear excepted.
(h) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under this
Agreement with any of their Affiliates on terms that are fair and
reasonable and no less favorable to the Borrower or such Subsidiary than it
would obtain in a comparable arm's-length transaction with a Person not an
Affiliate, other than any transaction or series of related transactions
solely between or among the Borrower and one or more of its Wholly-Owned
Subsidiaries, or solely between or among one or more of the Wholly-Owned
Subsidiaries of the Borrower, in each case to the extent such transaction
or series of related transactions is not otherwise prohibited under the
terms of this Agreement.
(i) Subordination. As promptly as practicable and in any event on or
prior to September 1, 1998, cause each of the Domestic Subsidiaries to
enter into an agreement to subordinate all of the Indebtedness of the
Borrower owing to such Domestic Subsidiary from time to time to the
obligations of the Borrower under and in respect of this Agreement and the
Notes on the terms set forth in Exhibit E hereto.
(j) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 55 days after
the end of each of the first three quarters of each fiscal year of the
Borrower, a Consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such quarter and Consolidated statements
of income, retained earnings and cash flows of the Borrower and its
Subsidiaries for the period commencing at the end of the previous
fiscal year and ending with the end of such quarter, duly certified
(subject to year-end audit adjustments) by the Chief Financial Officer
or Treasurer of the Borrower as having been prepared in accordance
with generally accepted accounting principles;
(ii) as soon as available and in any event within 100 days after
the end of each fiscal year of the Borrower, a copy of the annual
audit report for such fiscal year for the Borrower and its
Subsidiaries, containing a Consolidated balance sheet of the Borrower
and its Subsidiaries as of the end of such fiscal year and
Consolidated statements of income, retained earnings and cash flows of
the Borrower and its Subsidiaries for such fiscal year, in each case
accompanied by an unqualified opinion or an opinion otherwise
reasonably acceptable to the Required Lenders by Arthur Andersen & Co.
or other independent public accountants of nationally recognized
standing and reasonably acceptable to the Administrative Agent;
<PAGE>
47
(iii) simultaneously with each delivery of the financial
statements referred to in subclauses (j)(i) and (j)(ii) of this
Section 5.01, a certificate of the Chief Financial Officer or the
Treasurer of the Borrower as to compliance with the terms of this
Agreement (including, without limitation, with respect to any
Investment made pursuant to Section 5.02(d)(vii)) and setting forth in
reasonable detail the calculations necessary to demonstrate compliance
with Sections 5.02(b)(iv), 5.02(d)(viii) and 5.03;
(iv) as soon as possible and in any event within five days
after any Responsible Officer knows or has reason to know of the
occurrence of each Default or Event of Default continuing on the date
of such statement, a statement of such Responsible Officer setting
forth the details of such Default or Event of Default and the action
that the applicable Borrower has taken and proposes to take with
respect thereto;
(v) promptly after the sending or filing thereof, copies of
all reports and registration statements, if any, that the Borrower or
any of its Subsidiaries files with the Securities and Exchange
Commission or any national securities exchange;
(vi) promptly after the commencement thereof, notice of all
actions, suits, investigations, litigations, arbitrations and
proceedings before any court, governmental agency or arbitrator
affecting the Borrower or any of its Subsidiaries that (A) either
individually or in the aggregate, could be reasonably expected to have
a Material Adverse Effect other than the Disclosed Litigation or (B)
purports to adversely affect the legality, validity or enforceability
of this Agreement or any Note or the consummation of the transactions
contemplated hereby; and
(vii) such other financial information respecting the Borrower
or any of its Subsidiaries as any Lender through the Administrative
Agent may from time to time reasonably request.
SECTION 5.02. Negative Covenants. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder, the Borrower will not:
(a) Liens, Etc. Create or suffer to exist, or permit any of its
Subsidiaries to create or suffer to exist, any Lien on or with respect to
any of its properties, whether now owned or hereafter acquired, or assign,
or permit any of Subsidiaries to assign, any right to receive income, other
than its
(i) Permitted Liens;
(ii) purchase money Liens upon or in any real property or
equipment acquired or held by the Borrower or any of its Subsidiaries
in the ordinary course of business to secure the purchase price of
such real property or equipment or to secure Indebtedness incurred
solely for the purpose of financing the acquisition of such real
property or equipment, or Liens existing on any such real property or
equipment at the time of its acquisition (other than any such Liens
created in contemplation of such acquisition that were not incurred to
finance the acquisition of such real property or equipment); provided,
however, that no such Lien shall extend to or cover any property or
assets of any character other than the real property or equipment
being acquired; and provided further that any
<PAGE>
48
Indebtedness secured by such Liens shall be otherwise permitted under
the terms of this Agreement;
(iii) Liens on property or assets of a Person (other than the
Borrower or any of its Subsidiaries) existing at the time such
property or asset is purchased or otherwise acquired by the Borrower
or its Subsidiaries; provided that such Liens were not created in
contemplation of such purchase or other acquisition and do not extend
to any property or assets other than those so purchased or otherwise
acquired;
(iv) Liens on property or assets of a Person (other than the
Borrower or any of its Subsidiaries) existing at the time such Person
is merged into or consolidated with the Borrower or any Subsidiary of
the Borrower or becomes a Subsidiary of the Borrower; provided that
such Liens were not created in contemplation of such merger,
consolidation or acquisition and do not extend to any property or
assets other than those of the Person so merged into or consolidated
with, or acquired by, the Borrower or such Subsidiary;
(v) Liens on accounts or notes receivable (whether such
accounts or notes receivable constitute accounts, instruments, chattel
paper or general intangibles) and other related assets, and sales of
or discounts on the foregoing, arising solely in connection with the
securitization thereof (whether in one transaction or in a series of
transactions); provided that the sale or other disposition of any such
accounts or notes receivable and related assets shall be on a "true
sale" basis;
(vi) Liens not otherwise permitted under clauses (i) through
(v) of this Section 5.02(a) securing Indebtedness in an aggregate
principal amount not to exceed $30,000,000 (or the Equivalent thereof
in one or more Foreign Currencies) at any time outstanding; and
(vii) the replacement, extension or renewal of any Lien
otherwise permitted under clauses (ii) through (vi) of this Section
5.02(a) upon or in the same property and assets theretofore subject
thereto; provided that no such extension, renewal or replacement shall
extend to or cover any property not theretofore subject to the Lien
being extended, renewed or replaced; and provided further that any
Indebtedness secured by such Liens shall otherwise be permitted under
the terms of this Agreement.
(b) Subsidiary Indebtedness. Permit any of its Subsidiaries to
create, incur, assume or suffer to exist, any Indebtedness other than:
(i) Indebtedness under this Agreement and the Notes;
(ii) Indebtedness incurred pursuant to the facilities existing
on the date of this Agreement and described on Schedule 5.02(b)
hereto;
(iii) Indebtedness owed to the Borrower or to a Domestic
Subsidiary; provided, however, that (A) any such Indebtedness shall be
incurred in the ordinary course of business and (B) on and after
September 1, 1998, any such Indebtedness of the Borrower shall be
subordinated to all of the Borrower's Indebtedness under this
Agreement and the Notes on the same terms as those set forth in
Exhibit E hereto;
<PAGE>
49
(iv) unsecured Indebtedness not otherwise permitted under this
Section 5.02(b) incurred in the ordinary course of business and in an
aggregate amount not to exceed at any time outstanding 20% of
Consolidated Net Worth;
(v) Indebtedness extending the maturity of, or refunding or
refinancing, in whole or in part, any Indebtedness incurred under
clause (ii), (iii) or (iv) of this Section 5.02(b); provided, however,
that the aggregate principal amount of such extended, refunding or
refinancing Indebtedness shall not be increased above the outstanding
principal amount thereof immediately prior to such extension,
refunding or refinancing; and
(vi) endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business.
(c) Mergers, Etc. Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its property and assets
(whether now owned or hereafter acquired) to, any Person, or permit any of its
Subsidiaries to do so, except that:
(i) any Subsidiary may merge or consolidate with or into, or
convey, transfer, lease or otherwise dispose of all or substantially
all of its property and assets to, any other Wholly-Owned Subsidiary
of the Borrower;
(ii) any Subsidiary of the Borrower may merge or consolidate
with or into, or convey, transfer, lease or otherwise dispose of all
or substantially all of its property and assets to, the Borrower so
long as the Borrower is the surviving corporation;
(iii) subject to the requirements of Section 5.01(h), any
Subsidiary of the Borrower may merge or consolidate with or into, or
convey, transfer, lease or otherwise dispose of all or substantially
all of its property and assets to, any Subsidiary of the Borrower that
is not a Wholly-Owned Subsidiary of the Borrower;
(iv) the Borrower may merge with any other Person so long as
the Borrower is the surviving corporation; and
(v) subject to (A) the requirements of Section 5.01(h), (B) a
good faith determination by the Borrower that the continued existence
of such Subsidiary or that the ownership or maintenance of such
property and assets are no longer necessary or desirable in the
conduct of the business or the continued operations of the Borrower
and its Subsidiaries, taken as a whole and (C) compliance with the
covenants set forth in Section 5.03 on a pro forma basis as of the
last day of the Measurement Period most recently ended, any Subsidiary
of the Borrower may merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of all or substantially all of
its property and assets to one or more other Persons;
provided that, in the cases of subclauses (iii), (iv) and (v) of this
Section 5.02(c), no Default shall have occurred and be continuing at the
time of such proposed transaction or shall occur as a result thereof.
<PAGE>
50
(d) Investments in Other Persons. Make or hold, or permit any of its
Subsidiaries to make or hold, any Investment in any Person other than:
(i) Investments existing on the date of this Agreement;
(ii) Investments by the Borrower and its Subsidiaries in cash
and Marketable Securities;
(iii) Investments by the Borrower in one or more of its
Subsidiaries to the extent permitted under Section 5.02(b)(iii) or
5.02(b)(v);
(iv) Investments by any Subsidiary of the Borrower in the
Borrower or one or more other Subsidiaries of the Borrower;
(v) loans and advances to employees in the ordinary course of
the business of the Borrower and its Subsidiaries as presently
conducted;
(vi) Investments in account debtors received in connection with
the bankruptcy or reorganization, or in compromise or settlement of
delinquent obligations, of suppliers and customers arising in the
ordinary course of business and in accordance with applicable
collection and credit policies established by the Borrower or such
Subsidiary, as the case may be;
(vii) Investments not otherwise permitted under this Section
5.02(d); provided that in the case of any Investment made under this
clause (vii):
(A) such Investment shall result in (1) the acquisition of
all or substantially all of the assets of a Person or (2) the
acquisition or creation of a Subsidiary of the Borrower, or a
Person that will be or become part of a Subsidiary of the
Borrower, and such Subsidiary shall not have contingent
liabilities on the date of such Investment which could reasonably
be expected to be material to the Borrower and its Subsidiaries,
taken as a whole;
(B) any Subsidiary of the Borrower acquired or created as a
result of or in connection with such Investment shall be engaged
in, and any business acquired or invested in shall be,
substantially the same line of business as the business of the
Borrower and its Subsidiaries conducted at the time of such
Investment in the ordinary course, or a line of business directly
related thereto;
(C) any acquisition of shares of capital stock of (or other
ownership or profit interests in) a Person by the Borrower or any
of its Subsidiaries shall be effected as a Friendly Acquisition;
and
(D) immediately before and after giving effect to each such
Investment, no Default shall have occurred and be continuing; and
(viii) Investments not otherwise permitted under this Section
5.02(d) not to exceed in any fiscal year 30% of Consolidated Net Worth
determined as of the end of the
<PAGE>
51
immediately preceding fiscal year; provided that in the case of any
Investment made under this clause (viii):
(A) such Investment shall not include or result in
contingent liabilities which could reasonably be expected to be
material to the Borrower and its Subsidiaries, taken as a whole;
(B) any business acquired or invested in with (or in
connection with) such Investment shall be in substantially the
same line of business as the business of the Borrower and its
Subsidiaries conducted at the time of such Investment in the
ordinary course, or a line of business directly related thereto;
(C) any acquisition of shares of capital stock of (or other
ownership or profit interests in) a Person by the Borrower or any
of its Subsidiaries shall be effected as a Friendly Acquisition;
and
(D) immediately before and after giving effect to each such
Investment, no Default shall have occurred and be continuing.
(e) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any material change in the nature of its business as
carried on at the date of this Agreement.
(f) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any changes in its accounting policies or
financial reporting practices (including, without limitation, any changes
in the fiscal year of the Borrower or any of its Subsidiaries), except as
required by generally accepted accounting principles in effect from time to
time.
SECTION 5.03. Financial Covenants. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder, the Borrower will:
(a) Consolidated Net Worth. Maintain Consolidated Net Worth at all
times of not less than $175,000,000.
(b) Leverage Ratio. Maintain a Leverage Ratio as of the last day of
each Measurement Period of not more than 3.50:1.
(c) Fixed Charge Coverage Ratio. Maintain a Fixed Charge Coverage
Ratio as of the last day of each Measurement Period of not less than
1.50:1.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
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52
(a) The Borrower shall fail (i) to pay any principal of any Advance
when the same becomes due and payable or (ii) to pay any interest on any
Advance or to make any payment of fees or other amounts payable under this
Agreement or any Note, in each case under this clause (ii) within three
Business Days after the same becomes due and payable; or
(b) Any representation or warranty made by the Borrower herein or by
the Borrower (or any of its officers) in connection with this Agreement
shall prove to have been incorrect in any material respect when made; or
(c) The Borrower shall fail to perform or observe (i) any term,
covenant or agreement contained in Section 2.19, 5.01(h), 5.01(i) or
5.01(j), 5.02 or 5.03, (ii) any term, covenant or agreement contained in
Section 5.01(a), (b) or (d) if such failure shall remain unremedied for at
least ten days or (iii) any other term, covenant or agreement contained in
this Agreement on its part to be performed or observed if such failure
shall remain unremedied for at least 30 days after written notice thereof
shall have been given to the Borrower by the Administrative Agent or any
Lender; or
(d) The Borrower or any of its Material Subsidiaries shall fail to
pay any principal of or premium or interest on any Indebtedness that is
outstanding in a principal amount or, in the case of any Hedge Agreement,
having a maximum Agreement Value, of at least $10,000,000 (or the
Equivalent thereof in one or more Foreign Currencies) in the aggregate (but
excluding Indebtedness outstanding hereunder) of the Borrower or such
Subsidiary, as the case may be, when the same becomes due and payable
(whether by scheduled maturity, required prepayment, acceleration, demand
or otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to such
Indebtedness; or any other event shall occur or condition shall exist under
any agreement or instrument relating to any such Indebtedness and shall
continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such
Indebtedness; or any such Indebtedness shall be declared to be due and
payable, or required to be prepaid or redeemed (other than by a regularly
scheduled required prepayment or redemption), purchased or defeased, or an
offer to prepay, redeem, purchase or defease such Indebtedness shall be
required to be made, in each case prior to the stated maturity thereof; or
(e) The Borrower or any of its Material Subsidiaries shall admit in
writing its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against the Borrower or any of its Material Subsidiaries
seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of
an order for relief or the appointment of a receiver, trustee, custodian or
other similar official for it or for any substantial part of its property
and, in the case of any such proceeding instituted against it (but not
instituted by it), either such proceeding shall remain undismissed or
unstayed for a period of at least 60 days, or any of the actions sought in
such proceeding (including, without limitation, the entry of an order for
relief against, or the appointment of a receiver, trustee, custodian or
other similar official for, it or for any substantial part of its property)
shall occur; or the Borrower or any of its Material Subsidiaries shall take
any action to authorize any of the actions set forth above in this Section
6.01(e); or
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53
(f) One or more judgments or orders for the payment of money in
excess of $10,000,000 (or the Equivalent thereof in one or more Foreign
Currencies) shall be rendered against the Borrower or any of its
Subsidiaries and shall remain unsatisfied and either (i) enforcement
proceedings shall have been commenced by any creditor upon such judgment or
order or (ii) there shall be any period of at least ten consecutive days
during which a stay of enforcement of such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect; provided, however,
that any such judgment or order shall not be an Event of Default under this
Section 6.01(f) if and for so long as (i) the amount of such judgment or
order is covered by a valid and binding policy of insurance between the
defendant and the insurer covering payment thereof and (ii) such insurer
has been notified of, and has not disputed the claim made for payment of,
the amount of such judgment or order; or
(g) (i) Any Person or two or more Persons acting in concert shall
have acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of
1934, as amended), directly or indirectly, of Voting Stock of the Borrower
(or other securities convertible into or exchangeable for such Voting
Stock) representing 35% or more of the combined voting power of all Voting
Stock of the Borrower (on a fully diluted basis); or (ii) during any period
of up to 12 consecutive months, whether commencing before or after the date
of this Agreement, individuals who at the beginning of such 12-month period
were Continuing Directors shall cease for any reason to constitute a
majority of the board of directors of the Borrower; or (iii) any Person or
two or more Persons acting in concert shall have acquired by contract or
otherwise, or shall have entered into a contract or arrangement that, upon
consummation, will result in its or their acquisition of the power to
exercise, directly or indirectly, a controlling influence over the
management or policies of the Borrower; or
(h) The Borrower and/or one or more ERISA Affiliates shall incur or
could reasonably be expected to incur liability in excess of $10,000,000
(or the Equivalent thereof in one or more Foreign Currencies) in the
aggregate as a result of one or more of the following: (i) the occurrence
of any ERISA Event; (ii) the partial or complete withdrawal of the Borrower
or any ERISA Affiliate from a Multiemployer Plan; or (iii) the
reorganization or termination of a Multiemployer Plan;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Commitments of the Lenders and the obligation of each Lender to make
Advances to be terminated, whereupon the same shall forthwith terminate, and
(ii) shall at the request, or may with the consent, of the Required Lenders, by
notice to the Borrower, declare the Notes, all interest thereon and all other
amounts payable under this Agreement to be forthwith due and payable, whereupon
the Notes, all such interest and all such amounts shall become and be forthwith
due and payable, without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by the Borrower; provided,
however, that in the event of an actual or deemed entry of an order for relief
with respect to the Borrower under the Federal Bankruptcy Code, (A) the
Commitments of the Lenders and the obligation of each Lender to make Advances
shall automatically be terminated and (B) the Notes, all such interest and all
such amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by the Borrower.
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54
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby appoints
and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers and discretion under this Agreement as are
delegated to the Administrative Agent by the terms hereof, together with such
powers and discretion as are reasonably incidental thereto. As to any matters
not expressly provided for under this Agreement (including, without limitation,
enforcement or collection of the Notes), the Administrative Agent shall not be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding upon all Lenders and all holders of Notes;
provided, however, that the Administrative Agent shall not be required to take
any action (i) that exposes the Administrative Agent to personal liability or
that is contrary to this Agreement or applicable law or (ii) as to which the
Administrative Agent has not received adequate security or indemnity (whether
pursuant to Section 7.05 or otherwise). If the security or indemnity furnished
to the Administrative Agent for any purpose under or in respect of this
Agreement shall, in the good faith opinion of the Administrative Agent, be
insufficient or become impaired, then the Administrative Agent may require
additional security or indemnity and cease, or not commence, to follow the
directions or take the actions indemnified against until such additional
security or indemnity is furnished. The Administrative Agent agrees to give to
each Lender prompt notice of each notice given to it by the Borrower pursuant to
the terms of this Agreement.
SECTION 7.02. Administrative Agent's Reliance, Etc. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with this Agreement, except for its or their own gross
negligence or willful misconduct as determined in a final, nonappealable
judgment by a court of competent jurisdiction. Without limitation of the
generality of the foregoing, the Administrative Agent:
(i) may treat the payee of any Note as the holder thereof until the
Administrative Agent receives and accepts an Assignment and Acceptance
entered into by the Lender that is the payee of such Note or an Assumption
Agreement entered into by an Assuming Lender, as the case may be, as
assignor, and an Eligible Assignee, as assignee, as provided in Section
8.07, 2.16 or 2.17;
(ii) may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel, accountants or
experts;
(iii) makes no warranty or representation to any Lender and shall not
be responsible to any Lender for any statements, warranties or
representations (whether written or oral) made in or in connection with
this Agreement or any Note;
(iv) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of
this Agreement or any Note on the part
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55
of the Borrower or to inspect the property and assets (including the books
and records) of the Borrower;
(v) shall not be responsible to any Lender for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of
this Agreement or any Note or any other instrument or document furnished
pursuant hereto; and
(vi) shall incur no liability under or in respect of this Agreement
by acting upon any notice, consent, certificate or other instrument or
writing (which may be by telecopier, telegram or telex) believed by it to
be genuine and signed or sent by the proper party or parties.
SECTION 7.03. Citibank and Affiliates. With respect to its
Commitment, the Advances made by it and the Note or Notes issued to it, Citibank
shall have the same rights and powers under this Agreement as any other Lender
and may exercise the same as though it were not the Administrative Agent; and
the term "Lender" or "Lenders" shall, unless otherwise expressly indicated,
include Citibank in its individual capacity. Citibank and its affiliates may
accept deposits from, lend money to, act as trustee under indentures of, accept
investment banking engagements from and generally engage in any kind of business
with, the Borrower, any of its Subsidiaries and any Person who may do business
with or own securities of the Borrower or any such Subsidiary, all as if
Citibank were not the Administrative Agent and without any duty to account
therefor to the other Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges that
it has, independently and without reliance upon the Administrative Agent or any
other Lender and based on the financial statements referred to in Section
4.01(e) and such other documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon
the Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement.
SECTION 7.05. Indemnification. The Lenders agree to indemnify the
Administrative Agent (to the extent not reimbursed by the Borrower), ratably
according to the respective principal amounts of the Revolving Credit Notes
(determined in the case of any Revolving Credit Advances denominated in a
Foreign Currency and evidenced thereby by reference to the Equivalent thereof in
US Dollars at such time) then held by each of them (or, if no Revolving Credit
Notes are at the time outstanding or if any Revolving Credit Notes are held by
Persons that are not Lenders, ratably according to the respective amounts of
their Commitments at such time), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses and disbursements of any kind or nature whatsoever that may be imposed
on, incurred by, or asserted against the Administrative Agent in any way
relating to or arising out of this Agreement or any Note or any action taken or
omitted by the Administrative Agent under this Agreement (collectively, the
"Lender Indemnified Costs"); provided that no Lender shall be liable for any
portion of the Lender Indemnified Costs resulting from the Administrative
Agent's gross negligence or willful misconduct as determined in a final,
nonappealable judgment by a court of competent jurisdiction. In the case of any
claim, investigation, litigation or proceeding giving rise to any Lender
Indemnified Costs, the indemnification provided by the Lenders under this
Section 7.05 shall apply whether or not any such claim, investigation,
litigation or proceeding is brought by the Administrative Agent, any of the
Lenders or a third party. Without limitation of the foregoing, each Lender
agrees to reimburse the Administrative Agent promptly, upon demand, for its
ratable share of any out-of-pocket costs and expenses (including counsel fees)
incurred by the Administrative Agent in connection with the preparation,
execution, delivery,
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56
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, to the extent that the
Administrative Agent is not reimbursed for such expenses by the Borrower. The
failure of any of the Lenders to reimburse the Administrative Agent promptly
upon demand for its ratable share of any amount required to be paid by the
Lenders to the Administrative Agent as provided in this Section 7.05 shall not
relieve any of the other Lenders of its obligation hereunder to reimburse the
Administrative Agent for its ratable share of such amount, but none of the
Lenders shall be responsible for the failure of any of the other Lenders to
reimburse the Administrative Agent for such other Lender's ratable share of such
amount. Without prejudice to the survival of any other agreement of any of the
Lenders hereunder, the agreement and obligations of each of the Lenders
contained in this Section 7.05 shall survive the payment in full of all
principal, interest and other amounts payable under this Agreement and the
Notes.
SECTION 7.06. Successor Administrative Agent. The Administrative
Agent may resign at any time by giving written notice thereof to the Lenders and
the Borrower and may be removed at any time with or without cause by the
Required Lenders. Upon any such resignation or removal, the Required Lenders
shall have the right to appoint a successor Administrative Agent; provided that,
so long as no Default shall have occurred and be continuing, the Borrower shall
have the right to propose a successor Administrative Agent to the Lenders and
shall have the right to consent to any such successor Administrative Agent, such
consent not to be unreasonably withheld and to be deemed to have been given if
the Borrower does not object to the proposed successor Administrative Agent
within five Business Days of notice thereof. If no successor Administrative
Agent shall have been so appointed by the Required Lenders (and, if required,
consented to by the Borrower), and shall have accepted such appointment, within
30 days after the retiring Administrative Agent's giving of notice of
resignation or the Required Lenders' removal of the retiring Administrative
Agent, then the retiring Administrative Agent may, on behalf of the Lenders,
appoint a successor Administrative Agent, which shall be a commercial bank
organized under the laws of the United States of America or of any state thereof
and having a combined capital and surplus of at least $500,000,000. If within 45
days after written notice is given of the retiring Administrative Agent's
resignation or removal under this Section 7.06 no successor Administrative Agent
shall have been appointed and shall have accepted such appointment, then on such
45th day (a) the retiring Administrative Agent's resignation or removal shall
become effective, (b) the retiring Administrative Agent shall thereupon be
discharged from its duties and obligations under and in respect of this
Agreement and (c) the Required Lenders shall thereafter perform all duties and
obligations of the retiring Administrative Agent under and in respect of this
Agreement until such time, if any, as the Required Lenders appoint a successor
Administrative Agent as provided above in this Section 7.06. Upon the acceptance
of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, discretion, privileges
and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under this Agreement.
After any retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Article VII shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was the
Administrative Agent.
SECTION 7.07. The Sub-Agent. The Sub-Agent has been designated under
this Agreement to carry out the duties of the Administrative Agent related to
Revolving Credit Advances denominated in a Foreign Currency. Each Lender hereby
appoints and authorizes the Sub-Agent to take such action as agent on its behalf
as is necessary or desirable to carry out such duties and to exercise such
powers and discretion under this Agreement as are delegated to the Sub-Agent by
the terms hereof, together with such powers and discretion as are reasonably
incidental thereto. In that connection, the Sub-Agent shall be entitled to all
of
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57
the benefits of the Administrative Agent under this Agreement (including,
without limitation, all of the provisions of this Article VII) as if they were
set forth in full herein with respect to the Sub-Agent.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Revolving Credit Notes, nor consent to any
departure by the Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no amendment, waiver
or consent shall, unless in writing and signed by all the Lenders, do any of the
following at any time:
(a) waive any of the conditions specified in Section 3.01 or, with
respect to all Increasing Lenders or Consenting Lenders, as applicable, and
all Assuming Lenders, Section 3.04;
(b) increase the Commitments of the Lenders (other than as elected by
any Lender as provided in Section 2.16) or subject the Lenders to any
additional obligations;
(c) reduce the principal of, or stated rate of interest on, the
Revolving Credit Notes, the stated rate at which any fees hereunder are
calculated or any other amounts payable hereunder;
(d) postpone any date fixed for any payment of principal of, or
interest on, the Revolving Credit Notes (other than as provided in Section
2.17) or any fees or other amounts payable hereunder;
(e) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Revolving Credit Notes, or the number of
Lenders, that shall be required for the Lenders or any of them to take any
action hereunder; or
(f) amend this Section 8.01;
and provided further that no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Lenders
required above to take such action, affect the rights or duties of the
Administrative Agent under this Agreement or any Note.
SECTION 8.02. Notices, Etc. (a) All notices and other
communications provided for hereunder shall be in writing (including telecopier,
telegraphic or telex communication) and mailed, telecopied, telegraphed, telexed
or delivered, if to the Borrower, at its address at 101 East Erie Street,
Chicago, Illinois 60611-2897 (Telecopier No. (312) 425-6350), Attention:
Treasurer, with copies thereof to (i) the Assistant General Counsel of the
Borrower at the address of the Borrower specified above and (ii) Sidley &
Austin, One First National Plaza, Chicago, Illinois 60603 (Telecopier No. (312)
853-7036), Attention: Jeffrey S. Rothstein, Esq.; if to any Initial Lender, at
its Base Rate Lending Office specified opposite its name on Schedule I hereto;
if to any other Lender, at its Base Rate Lending Office specified in the
Assignment and Acceptance or the Assumption Agreement, as the case may be,
pursuant to which it became a Lender; and if to the Administrative Agent, at its
address c/o Citicorp Securities, Inc., 200 South
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58
Wacker Drive, 31st Floor, Chicago, Illinois 60606 (Telecopier No. (312) 993-
1050), Attention: Mr. H. Peter Koesler; or, as to the Borrower or the
Administrative Agent, at such other address as shall be designated by such party
in a written notice to the other parties and, as to each other party, at such
other address as shall be designated by such party in a written notice to the
Borrower and the Administrative Agent. All such notices and communications
shall, when mailed, telecopied, telegraphed or telexed, be effective when
deposited in the mails, telecopied, delivered to the telegraph company or
confirmed by telex answerback, respectively, except that notices and
communications to the Administrative Agent pursuant to Article II, III or VII
shall not be effective until received by the Administrative Agent. Delivery by
telecopier of an executed counterpart of any amendment or waiver of any
provision of this Agreement or the Notes or of any Exhibit hereto to be executed
and delivered hereunder shall be effective as delivery of a manually executed
counterpart thereof.
(b) If any notice required under this Agreement is permitted to be
made, and is made, by telephone, actions taken or omitted to be taken in
reliance thereon by the Administrative Agent or any Lender shall be binding upon
the Borrower notwithstanding any inconsistency between the notice provided by
telephone and any subsequent writing in confirmation thereof provided to the
Administrative Agent or such Lender; provided that any such action taken or
omitted to be taken by the Administrative Agent or such Lender shall have been
in good faith and in accordance with the terms of this Agreement.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any
Lender or the Administrative Agent to exercise, and no delay in exercising, any
right hereunder or under any Note shall operate as a waiver thereof or consent
thereto; nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by applicable law.
SECTION 8.04. Costs and Expenses. (a) The Borrower hereby agrees to
pay, or to reimburse the Administrative Agent from time to time, upon demand for
all reasonable out-of-pocket costs and expenses of the Administrative Agent in
connection with the preparation, execution, delivery, administration,
modification and amendment of this Agreement, the Notes and the other documents
to be delivered hereunder, including, without limitation, (i) all due diligence,
syndication (including printing, distribution and bank meetings),
transportation, computer, duplication, and messenger costs and audit expenses
and (ii) the reasonable and documented fees and expenses of counsel for the
Administrative Agent with respect thereto and with respect to advising the
Administrative Agent as to its respective rights and responsibilities under this
Agreement, the Notes and the other documents to be delivered hereunder. The
Borrower further hereby agrees to pay, or to reimburse the Administrative Agent
and the Lenders from time to time, upon demand for all reasonable out-of-pocket
costs and expenses of the Administrative Agent and the Lenders, if any
(including, without limitation, reasonable and documented counsel fees and
expenses), in connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) of this Agreement, the Notes and the other
documents to be delivered hereunder, including, without limitation, reasonable
fees and expenses of counsel for the Administrative Agent and each Lender in
connection with the enforcement of rights under this Section 8.04(a); provided
that the Borrower shall only be obligated to pay the fees and expenses of one
counsel for the Administrative Agent and the Lenders, which shall be counsel for
the Administrative Agent, unless any Lender shall reasonably determine that a
conflict of interest exists such that counsel for the Administrative Agent is
precluded by law or by standards of conduct from representing the Administrative
Agent and the Lenders as a group, in which case the Borrower hereby agrees to
pay, or to reimburse the Administrative Agent and the Lenders from time to time,
upon demand for all reasonable and documented fees and expenses of the minimum
number of counsel necessary in the reasonable judgment of the Lenders to provide
the Administrative Agent and each Lender with appropriate
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59
legal representation in connection with the enforcement of their respective
rights under this Agreement, the Notes and the other documents to be delivered
hereunder.
(b) The Borrower hereby agrees to indemnify and hold harmless the
Administrative Agent and each Lender and each of their affiliates and their
officers, directors, employees, agents and advisors (each, an "Indemnified
Party") from and against any and all claims, damages, losses, liabilities and
expenses (including, without limitation, reasonable fees and expenses of
counsel) that may be incurred by or asserted or awarded against any Indemnified
Party, in each case arising out of or in connection with or by reason of
(including, without limitation, in connection with any investigation, litigation
or proceeding or preparation of a defense in connection therewith) (i) the
Notes, this Agreement, any of the transactions contemplated hereby or the actual
or proposed use of the proceeds of the Advances or (ii) the actual or alleged
presence of Hazardous Materials on any property of the Borrower or any of its
Subsidiaries or any Environmental Action relating in any way to the Borrower or
any of its Subsidiaries, except to the extent such claim, damage, loss,
liability or expense is found in a final, nonappealable judgment by a court of
competent jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct; provided, however, that, notwithstanding the
foregoing provisions of this Section 8.04(b), the Borrower shall not be
obligated to indemnify any of the Indemnified Parties for any claim, damage,
loss, liability or expense arising solely from (i) a dispute between two or more
Lenders or (ii) a claim by any Lender against the Borrower that is found in a
final nonappealable judgment by a court of competent jurisdiction in favor of
the Borrower (it being understood and agreed that this clause (ii) shall not
affect or limit any amount the Borrower may owe to any Lender as a result of any
such claim pursuant to Section 8.04(a)). In the case of an investigation,
litigation or other proceeding to which the indemnity in this Section 8.04(b)
applies, such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by the Borrower, its directors, shareholders
or creditors or an Indemnified Party or any Indemnified Party is otherwise a
party thereto and whether or not any of the transactions contemplated hereby are
consummated. The Borrower hereby also agrees not to assert any claim against
the Administrative Agent, any Lender, any of their Affiliates, or any of their
respective officers, directors, employees, agents and advisors, on any theory of
liability, for special, indirect, consequential or punitive damages arising out
of or otherwise relating to this Agreement, the Notes, any of the transactions
contemplated hereby or the actual or proposed use of the proceeds of the
Advances.
(c) If any payment of principal of, or Conversion of, any Eurocurrency
Rate Advance is made by the Borrower to or for the account of a Lender other
than on the last day of the Interest Period for such Advance, as a result of a
payment or Conversion pursuant to Section 2.08(d) or 2.08(e), 2.09, 2.10 or
2.12, acceleration of the maturity of the Notes pursuant to Section 6.01 or for
any other reason, or by an Eligible Assignee to any Lender other than on the
last day of the Interest Period for such Advance upon an assignment of the
rights and obligations of such Lender under this Agreement pursuant to Section
8.07 as a result of a demand by the Borrower pursuant to Section 8.07(a), or if
the Borrower fails to make any payment or prepayment of an Advance for which a
notice of prepayment has been given or that is otherwise required to be made,
whether pursuant to Section 2.06, 2.10 or 6.01 or otherwise, the Borrower agrees
to pay, upon demand by such Lender (with a copy of such demand to the
Administrative Agent), to the Administrative Agent for the account of such
Lender any amounts required to compensate such Lender for any additional losses,
costs or expenses (excluding any loss of anticipated profits) that it may
reasonably incur as a result of such payment or Conversion, including, without
limitation, any loss, cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender to fund or
maintain such Advance.
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(d) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
Sections 2.11 and 2.14 and in this Section 8.04 shall survive the payment in
full of principal, interest and all other amounts payable hereunder and under
the Notes.
SECTION 8.05. Right of Setoff. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
applicable law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by such Lender or such Affiliate to or for the credit or the
account of the Borrower against any and all of the obligations of the Borrower
now or hereafter existing under this Agreement and the Note or Notes held by
such Lender, whether or not such Lender shall have made any demand under this
Agreement or any such Note and although such obligations may be unmatured. Each
Lender agrees promptly to notify the Borrower after any such setoff and
application is made by such Lender; provided that the failure to give such
notice shall not affect the validity of such setoff and application. The rights
of each Lender and its Affiliates under this Section 8.05 are in addition to
other rights and remedies (including, without limitation, other rights of
setoff) that such Lender and its Affiliates may have. Nothing in this Section
8.05 shall be construed to grant a right of setoff against any Person other than
the Borrower.
SECTION 8.06. Binding Effect. This Agreement shall become effective
(other than Sections 2.01 and 2.03, which shall only become effective upon
satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by the Borrower and the Administrative Agent and when
the Administrative Agent shall have been notified by each Initial Lender that
such Initial Lender has executed it and, thereafter, shall be binding upon and
inure to the benefit of, and be enforceable by, the Borrower, the Administrative
Agent and each Lender and their respective successors and assigns, except that
the Borrower shall not have the right to assign its rights hereunder or any
interest herein without the prior written consent of the Lenders.
SECTION 8.07. Assignments and Participations. (a) Each Lender may,
and, if demanded by the Borrower (following (i) a demand by such Lender for the
payment of additional compensation pursuant to Section 2.11 or 2.14 or (ii) an
assertion by such Lender pursuant to Section 2.08(b) or 2.12 that it is
impracticable or unlawful for such Lender to make Eurocurrency Rate Advances)
upon at least five Business Days' notice to such Lender and the Administrative
Agent, each Lender will, assign to one or more Persons all or a portion of its
rights and obligations under this Agreement (including, without limitation, all
or a portion of its Commitment, the Revolving Credit Advances owing to it and
the Revolving Credit Note or Notes held by it); provided, however, that:
(A) each such assignment shall be of a constant, and not a varying,
percentage of all rights and obligations under this Agreement (other than
any right to make Competitive Bid Advances, Competitive Bid Advances owing
to it and Competitive Bid Notes);
(B) except in the case of an assignment to a Person that, immediately
prior to such assignment, was a Lender or an assignment of all of a
Lender's rights and obligations under this Agreement, the amount of the
Commitment of the assigning Lender being assigned pursuant to each such
assignment, when aggregated with the amount of the commitment of such
Person to lend under the Five-Year Credit Agreement that is being
concurrently assigned in accordance with subclause
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(C) of this Section 8.07(a) (in each case determined as of the date of the
Assignment and Acceptance with respect to such assignment), shall in no
event be less than $10,000,000 or an integral multiple of $1,000,000 in
excess thereof;
(C) the Lender assignor shall concurrently effect a ratable assignment
of its rights and obligations under the Five-Year Credit Agreement to the
same Person;
(D) each such assignment shall be to an Eligible Assignee;
(E) each such assignment made as a result of a demand by the Borrower
pursuant to this Section 8.07(a) shall be arranged by the Borrower with the
approval of the Administrative Agent, which approval shall not be
unreasonably withheld or delayed, and shall be either an assignment of all
of the rights and obligations of the assigning Lender under this Agreement
or an assignment of a portion of such rights and obligations made
concurrently with another such assignment or other such assignments that,
in the aggregate, cover all of the rights and obligations of the assigning
Lender under this Agreement;
(F) no Lender shall be obligated to make any such assignment as a
result of a demand by the Borrower pursuant to this Section 8.07(a) unless
and until such Lender shall have received one or more payments from one or
more Eligible Assignees in an aggregate amount at least equal to the
aggregate outstanding principal amount of the Advances owing to such
Lender, together with accrued interest thereon to the date of payment of
such principal amount, and from the Borrower or one or more Eligible
Assignees in an aggregate amount equal to all other amounts payable to such
Lender under this Agreement and the Notes (including, without limitation,
any amounts owing under Sections 2.07(c), 2.11 and 2.14); and
(G) the parties to each such assignment (except in the case of a
demand by the Borrower pursuant to this Section 8.07(a), other than the
Borrower) shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance,
together with any Revolving Credit Note subject to such assignment, and a
processing and recordation fee of $3,000.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, (1) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder and (2) the
Lender assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights (other than its rights under Sections 2.07(c), 2.11, 2.14
and 8.04 to the extent any claim thereunder relates to an event arising prior to
such assignment) and be released from its obligations (other than its
obligations under Section 7.05 to the extent that any claim thereunder relates
to an event arising prior to such assignment) under this Agreement (and, in the
case of an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows:
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(i) other than as provided in such Assignment and Acceptance, such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or any Note,
or any other instrument or document furnished pursuant hereto, or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any Note, or any other instrument or document
furnished pursuant hereto;
(ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any Note, or any other instrument or
document furnished pursuant hereto;
(iii) such assignee confirms that it has received a copy of this
Agreement, together with copies of the financial statements referred to in
Section 4.01(e) and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance;
(iv) such assignee agrees that it will, independently and without
reliance upon the Administrative Agent, such assigning Lender or any other
Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement;
(v) such assignee confirms that it is an Eligible Assignee;
(vi) such assignee appoints and authorizes the Administrative Agent
and the Sub-Agent to take such action as agent on its behalf and to
exercise such powers and discretion under this Agreement as are delegated
to the Administrative Agent and the Sub-Agent, respectively, by the terms
hereof, together with such powers and discretion as are reasonably
incidental thereto; and
(vii) such assignee agrees that it will perform in accordance with
their terms all of the obligations that by the terms of this Agreement are
required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Revolving Credit Note or Notes subject to such assignment, the
Administrative Agent shall, if such Assignment and Acceptance has been completed
and is in substantially the form of Exhibit C hereto, (i) accept such Assignment
and Acceptance, (ii) record the information contained therein in the Register
and (iii) give prompt notice thereof to the Borrower. Within ten Business Days
after its receipt of such notice by the Borrower, at its own expense, shall
execute and deliver to the Administrative Agent in exchange for the surrendered
Revolving Credit Note of the Borrower a new Revolving Credit Note payable to the
order of such Eligible Assignee in an amount equal to the Commitment assumed by
it pursuant to such Assignment and Acceptance and, if the assigning Lender has
retained a Commitment hereunder, a new Revolving Credit Note payable to the
order of the assigning Lender in an amount equal to the Commitment retained by
it hereunder. Such new Revolving Credit Note or Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of such surrendered
Revolving Credit Note or Notes, shall be dated the effective date of such
Assignment and Acceptance and shall otherwise be in substantially the form of
Exhibit A-1 hereto.
(d) The Administrative Agent shall maintain at its address referred to
in Section 8.02(a) a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation
<PAGE>
63
of the names and addresses of the Lenders and the Commitment of, and principal
amount of the Advances owing to, each Lender from time to time (the "Register").
The entries in the Register shall be conclusive and binding for all purposes,
absent demonstrable error, and the Borrower, the Administrative Agent and the
Lenders may treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register shall be available
for inspection by the Borrower or any Lender at any reasonable time and from
time to time upon reasonable prior notice.
(e) Each Lender may sell participations to one or more banks or other
entities (other than the Borrower or any of its Affiliates) in or to all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Advances owing to it and the
Note or Notes held by it); provided, however, that:
(i) such Lender's obligations under this Agreement (including, without
limitation, its Commitment) shall remain unchanged;
(ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations;
(iii) such Lender shall remain the holder of any such Note for all
purposes of this Agreement;
(iv) the Borrower, the Administrative Agent, the Sub-Agent and the
other Lenders shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under this
Agreement; and
(v) no participant under any such participation shall have any right
to approve any amendment or waiver of any provision of this Agreement or
any Note, or consent to any departure by the Borrower herefrom or
therefrom, except to the extent that such amendment, waiver or consent
would reduce the principal of, or stated rate of interest on, the Notes or
the stated rate at which any fees or any other amounts payable hereunder
are calculated, in each case to the extent subject to such participation,
or postpone any date fixed for any payment of principal of, or interest on,
the Notes (other than as provided in Section 2.17) or any fees or any other
amounts payable hereunder, in each case to the extent subject to such
participation.
(f) Any Lender may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 8.07, disclose
to any assignee or participant or proposed assignee or participant any
information relating to the Borrower or any of its Subsidiaries furnished to
such Lender by or on behalf of the Borrower; provided that, prior to any such
disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of such Confidential Information
received by it from such Lender in accordance with Section 8.08.
(g) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time create a security interest in all or any portion of
its rights under this Agreement (including, without limitation, the Advances
owing to it and the Note or Notes held by it) in favor of any Federal Reserve
Bank in accordance with Regulation A of the Board of Governors of the Federal
Reserve System.
SECTION 8.08. Confidentiality. Neither the Administrative Agent nor
any Lender shall disclose any Confidential Information to any Person without the
prior consent of the Borrower, other than
<PAGE>
64
(a) to the Administrative Agent's or such Lender's Affiliates and their
officers, directors, employees, agents and advisors and, as contemplated by
Section 8.07(f), to actual or prospective assignees and participants, and then
only on a confidential basis, (b) as required by any law, rule or regulation or
judicial or legal process, provided that solely with respect to this clause (b)
the Administrative Agent or such Lender shall notify the Borrower of the
requirement or request that it disclose any such Confidential Information prior
to doing so unless such notification is prohibited by any applicable law or
judicial or legal process, (c) to the Administrative Agent and/or other Lenders
and (d) as requested or required by any state, federal or foreign authority or
examiner regulating banks or banking.
SECTION 8.09. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 8.10. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.11. Judgment. (a) Rate of Exchange. If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum due hereunder
or under any Note or Notes in another currency into US Dollars or into a Foreign
Currency, as the case may be, the parties hereto agree, to the fullest extent
that they may effectively do so, that the rate of exchange used shall be that at
which, in accordance with normal banking procedures, a Lender could purchase
such other currency with US Dollars or with a Foreign Currency, as the case may
be, at the principal office of the Sub-Agent in London, England at the close of
business on the Business Day immediately preceding the day on which final
judgment is given, together with any premiums and costs of exchange payable in
connection with such purchase.
(b) Indemnity. The obligation of the Borrower in respect of any sum
due from it to the Administrative Agent or any Lender hereunder or under any
Note or Notes shall, notwithstanding any judgment in a currency other than US
Dollars or a Foreign Currency, as the case may be, be discharged only to the
extent that on the Business Day next succeeding receipt by the Administrative
Agent or such Lender of any sum adjudged to be so due in such other currency,
the Administrative Agent or such Lender may, in accordance with normal banking
procedures, purchase US Dollars or such Foreign Currency, as the case may be,
with such other currency. If the US Dollars or such Foreign Currency so
purchased are less than the sum originally due to such Administrative Agent or
such Lender in US Dollars or in such Foreign Currency, the Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the
Administrative Agent or such Lender against such loss, and if the US Dollars or
such Foreign Currency so purchased exceed the sum originally due to the
Administrative Agent or any Lender in US Dollars or in such Foreign Currency, as
the case may be, the Administrative Agent or such Lender agrees to remit to the
Borrower such excess.
SECTION 8.12. Jurisdiction, Etc. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York state court or any federal court of
the United States of America sitting in New York City, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement or the Notes, or for recognition or enforcement of any judgment in
respect thereof, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York state court or, to
the extent permitted by law, in any such
<PAGE>
65
federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that any party may otherwise
have to bring any action or proceeding relating to this Agreement or the Notes
in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection that
it may now or hereafter have to the laying of venue of any action or proceeding
arising out of or relating to this Agreement or the Notes in any New York state
or federal court. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
SECTION 8.13. Waiver of Jury Trial. The Borrower, the Administrative
Agent and the Lenders hereby irrevocably waives all right to trial by jury in
any action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Agreement or the Notes or the
actions of the Administrative Agent or any Lender in the negotiation,
administration, performance or enforcement hereof or thereof.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
THE BORROWER
------------
TRUE NORTH COMMUNICATIONS INC.
By /s/ Kenneth J. Ashley
---------------------------------------
Name: Kenneth J. Ashley
Title: Treasurer
THE ADMINISTRATIVE AGENT
------------------------
CITIBANK, N.A., as Administrative Agent
By /s/ Carolyn A. Kee
---------------------------------------
Name: Carolyn A. Kee
Title: Attorney-in-Fact
THE INITIAL LENDERS
-------------------
COMMITMENT
- ----------
$18,000,000 CITIBANK, N.A.
By /s/ Carolyn A. Kee
---------------------------------------
Name: Carolyn A. Kee
Title: Attorney-in-Fact
$10,500,000 THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Scott D. Moreen
---------------------------------------
Name: Scott D. Moreen
Title: Vice President
<PAGE>
$10,500,000 BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By /s/ Timothy J. Pepowski
---------------------------------------
Name: Timothy J. Pepowski
Title: Senior Vice President
$10,500,000 THE CHASE MANHATTAN BANK
By /s/ Thomas J. Cox
---------------------------------------
Name: Thomas J. Cox
Title: Vice President
$7,500,000 THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH
By /s/ Hajime Watanabe
---------------------------------------
Name: Hajime Watanabe
Title: Deputy General Manager
$6,000,000 BANQUE NATIONALE DE PARIS
By /s/ Arnaud Collin du Bocage
---------------------------------------
Name: Arnaud Collin du Bocage
Title: Executive Vice President & General
Manager
$6,000,000 THE NORTHERN TRUST COMPANY
By /s/ Joseph A. Wemhoff
---------------------------------------
Name: Joseph A. Wemhoff
Title: Vice President
<PAGE>
$6,000,000 FLEET BANK, N.A.
By /s/ Thomas J. Levy
---------------------------------------
Name: Thomas J. Levy
Title: Vice President
TOTAL OF COMMITMENTS
- --------------------
$75,000,000
<PAGE>
SCHEDULE I TO THE CREDIT AGREEMENT TO THE CREDIT AGREEMENT
COMMITMENTS AND APPLICABLE LENDING OFFICES
<TABLE>
<CAPTION>
Name of Domestic Eurocurrency
Initial Lender Commitment Lending Office Lending Office
-------------- ---------- -------------- --------------
<S> <C> <C> <C>
Citibank, N.A. $18,000,000 Two Penns Way, Suite 200 Two Penns Way, Suite 200
New Castle, DE 19720 New Castle, DE 19720
Attn: Kent Leonard Attn: Kent Leonard
Tel: (302) 894-6016 Tel: (302) 894-6016
Fax: (302) 894-6120 Fax: (302) 894-6120
Bank of America National Trust $10,500,000 231 South LaSalle Street, 11th Floor 231 South LaSalle Street, 11th Floor
and Savings Association Chicago, IL 60697 Chicago, IL 60697
Attn: Fred Johnson Attn: Fred Johnson
Tel: (312) 828-6706 Tel: (312) 828-6706
Fax: (312) 974-1199 Fax: (312) 974-1199
The First National Bank $10,500,000 One First National Plaza One First National Plaza
of Chicago Suite 0088 1-14 Suite 0088 1-14
Chicago, IL 60670 Chicago, IL 60670
Attn: Richard Bedell Attn: Richard Bedell
Tel: (312) 732-2413 Tel: (312) 732-2413
Fax: (312) 732-1117 Fax: (312) 732-1117
Chase Manhattan Bank $10,500,000 600 Fifth Avenue, 600 Fifth Avenue,
5th Floor 5th Floor
New York, NY 10020 New York, NY 10020
Attn: Tom Cox Attn: Tom Cox
Tel: (212) 332-4355 Tel: (212) 332-4355
Fax: (212) 332-4370 Fax: (212) 332-4370
The Bank of Tokyo-Mitsubishi, $7,500,000 227 W. Monroe Street, 227 W. Monroe Street,
Ltd., Chicago Branch Suite 2300 Suite 2300
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Name of Domestic Eurocurrency
Initial Lender Commitment Lending Office Lending Office
-------------- ---------- -------------- --------------
<S> <C> <C> <C>
Chicago, IL 60606 Chicago, IL 60606
Attn: Diane Tkach Attn: Diane Tkach
Tel: (312) 696-4663 Tel: (312) 696-4663
Fax: (312) 696-4535 Fax: (312) 696-4535
Banque Nationale de Paris $6,000,000 209 South LaSalle Street 209 South LaSalle Street
Chicago, IL 60604 Chicago, IL 60604
Attn: Jo Ellen Bender Attn: Jo Ellen Bender
Tel: (312) 977-2225 Tel: (312) 977-2225
Fax: (312) 977-1380 Fax: (312) 977-1380
The Northern Trust Company $6,000,000 50 South LaSalle Street 50 South LaSalle Streety
Chicago, IL 60675 Chicago, IL 60675
Attn: Michelle Teleak Attn: Michelle Teleak
Tel: (312) 444-3506 Tel: (312) 444-3506
Fax: (312) 444-5055 Fax: (312) 444-5055
Fleet Bank, N.A. $6,000,000 1185 Avenue of the Americas 1185 Avenue of the Amer
New York, NY 10036 New York, NY 10036
Attn: Thomas Levy Attn: Thomas Levy
Tel: (212) 819-5751 Tel: (212) 819-5751
Fax: (212) 819-4112 Fax: (212) 819-4112
</TABLE>
<PAGE>
EXHIBIT A-1 TO THE CREDIT AGREEMENT
FORM OF REVOLVING CREDIT PROMISSORY NOTE
U.S.$_______________ Dated: _________ __, _______
FOR VALUE RECEIVED, the undersigned, TRUE NORTH COMMUNICATIONS INC., a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
______________ (the "Lender") for the account of its Applicable Lending Office
(as defined in the Credit Agreement referred to below) on the later of (a) the
Revolver Termination Date and (b) if the Term Loan Election is exercised
pursuant to Section 2.06 of the Credit Agreement, the Maturity Date (each as
defined in the Credit Agreement), the principal amount of U.S. [SPECIFY
PRINCIPAL AMOUNT OF THE LENDER'S COMMITMENT IN WORDS] DOLLARS or, if different,
the aggregate principal amount of all Revolving Credit Advances (as defined in
the Credit Agreement) made by the Lender to the Borrower pursuant to the Credit
Agreement and outstanding on the Revolver Termination Date or the Maturity Date,
as applicable. Capitalized terms not otherwise defined in this Promissory Note
shall have the same meanings as specified therefor in the Credit Agreement.
The Borrower promises to pay interest on the unpaid principal amount
of each Revolving Credit Advance made by the Lender from the date of such
Revolving Credit Advance until such principal amount is paid in full, at such
interest rates, and payable at such times, as are specified in the Credit
Agreement.
Both principal of and interest on each Revolving Credit Advance made
by the Lender (a) in US Dollars, are payable in lawful money of the United
States of America to Citibank, N.A., as Administrative Agent, at Two Penns Way,
New Castle, Delaware 19720, Account No. 36852248, Reference: True North
Communications Inc. (or such other account maintained by the Administrative
Agent and designated thereby in a written notice to the Borrower and the
Lender), in same day funds, and (b) in any Foreign Currency, are payable in such
Foreign Currency at the applicable Payment Office in same day funds. Each
Revolving Credit Advance owing to the Lender pursuant to the Credit Agreement,
and all payments made on account of principal thereof, shall be recorded by the
Lender and, prior to any transfer hereof, endorsed on the grid attached hereto
which is part of this Promissory Note; provided that the failure of the Lender
to make any such recordation or endorsement shall not affect the obligations of
the Borrower under or in respect of this Promissory Note or the Credit
Agreement.
This Promissory Note is one of the Revolving Credit Notes referred to
in, and is entitled to the benefits of, the Credit Agreement dated as of May 29,
1998 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement", the terms defined therein being used herein as therein
defined) among the Borrower, the Lender and certain other banks, financial
institutions and other institutional lenders party thereto and Citibank, N.A.,
as Administrative Agent for the Lender and such other banks, financial
institutions and other institutional lenders thereunder. The Credit Agreement,
among other things, (A) provides for the making of Revolving Credit Advances by
the Lender to the Borrower from time to time on and after the Effective Date in
an aggregate amount not to exceed at any time outstanding the U.S. Dollar
amount first above mentioned (or the Equivalent thereof in the Foreign
Currencies in which any such Revolving Credit Advances are denominated), the
indebtedness of the Borrower resulting from each such Revolving Credit Advance
being evidenced by this Promissory Note, (B) contains provisions for determining
the Equivalent in US Dollars of the Revolving Credit Advances denominated in
Foreign Currencies and (C) is subject to optional and mandatory commitment
reductions and prepayments on account
<PAGE>
A-1-ii
of principal hereof, in whole or in part, prior to the maturity hereof upon the
terms and conditions specified in Sections 2.05 and 2.10 of the Credit
Agreement.
Upon the occurrence and during the continuance of one or more Events
of Default, the unpaid principal amount of this Promissory Note and all accrued
and unpaid interest hereon and other amounts payable in respect hereof and of
the Credit Agreement and the other Notes may become, or may be declared to be,
immediately due and payable as provided in Section 6.01 of the Credit Agreement.
The terms of this Promissory Note may be amended, supplemented or
otherwise modified only in the manner provided in the Credit Agreement.
The Borrower hereby waives presentment, demand, protest and notice of
any kind. No failure on the part of the holder hereof to exercise, and no delay
in exercising, any right, power or privilege hereunder shall operate as a waiver
thereof or a consent thereto; nor shall a single or partial exercise of any such
right, power or privilege preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of New York.
TRUE NORTH COMMUNICATIONS INC.
By____________________________________
Name:
Title:
<PAGE>
ADVANCES AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
================================================================================
Amount/Currency Amount of
Date of Revolving Principal Paid Unpaid Principal Notation
Credit Advance or Prepaid Balance Made By
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
================================================================================
</TABLE>
<PAGE>
EXHIBIT A-2 TO THE CREDIT AGREEMENT
FORM OF COMPETITIVE BID PROMISSORY NOTE
U.S.$ _______________ Dated: _________ __, _______
FOR VALUE RECEIVED, the undersigned, TRUE NORTH COMMUNICATIONS INC., a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
_______________ (the "Lender"), for the account of its Applicable Lending Office
(as defined in the Credit Agreement referred to below) on ________________,
____, the lesser of (a) the principal amount of U.S.[SPECIFY PRINCIPAL AMOUNT
EVIDENCED BY THIS PROMISSORY NOTE IN WORDS] DOLLARS and (b) the principal amount
of the Competitive Bid Advance (as defined in the Credit Agreement) made by the
Lender and evidenced by this Promissory Note, and outstanding on
________________, ____. Capitalized terms not otherwise defined in this
Promissory Note shall have the same meanings as specified therefor in the Credit
Agreement.
The Borrower promises to pay interest on the unpaid principal amount
of the Competitive Bid Advance evidenced by this Promissory Note from the date
hereof until such principal amount is paid in full, at the interest rate and
payable on the interest payment date or dates provided below and on the date
such principal amount is paid in full:
Interest Rate: _____% per annum (calculated on the basis of a year of
360 days for the actual number of days elapsed).
Maturity Date: _____________________
Interest Payment Date(s): _____________________
Both principal and interest on the unpaid principal amount of the
Competitive Bid Advance evidenced by this Promissory Note are payable in lawful
money of the United States of America to Citibank, N.A., as Administrative
Agent, for the account of the Lender, at Two Penns Way, New Castle, Delaware
19720, Account No. 36852248, Reference: True North Communications Inc., in same
day funds (or such other account maintained by the Administrative Agent and
designated thereby in a written notice to the Borrower and the Lender).
The principal amount of the Competitive Bid Advance evidenced by this
Promissory Note [may] [may not] be prepaid, in whole or in part [upon at least
___ Business Days' notice to the Administrative Agent and the Lender, together
with accrued interest to the date of such prepayment on the principal amount so
prepaid; provided, however, that (i) each partial prepayment shall be in an
aggregate amount of U.S.$_________ or an integral multiple of U.S.$_________ in
excess thereof and (ii) the Borrower shall be obligated to reimburse the Lender
in respect thereof pursuant to Section 8.04(c) of the Credit Agreement].
This Promissory Note is one of the Competitive Bid Notes referred to
in, and is entitled to the benefits of, the Credit Agreement dated as of May 29,
1998 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"; the terms defined therein being used herein as therein
defined) among the Borrower, the Lender and certain other banks, financial
institutions and other
<PAGE>
A-2-ii
institutional lenders party thereto and Citibank, N.A., as Administrative Agent
for the Lender and such other banks, financial institutions and other
institutional lenders thereunder.
Upon the occurrence and during the continuance of one or more Events
of Default, the unpaid principal amount of this Promissory Note and all accrued
and unpaid interest hereon and other amounts payable in respect hereof and of
the Credit Agreement and the other Notes may become, or may be declared to be,
immediately due and payable as provided in Section 6.01 of the Credit Agreement.
The terms of this Promissory Note may be amended, supplemented or
otherwise modified only in the manner provided in the Credit Agreement.
The Borrower hereby waives presentment, demand, protest and notice of
any kind. No failure on the part of the holder hereof to exercise, and no delay
in exercising, any right, power or privilege hereunder shall operate as a waiver
thereof or a consent thereto; nor shall a single or partial exercise of any such
right, power or privilege preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of New York.
TRUE NORTH COMMUNICATIONS INC.
By ____________________________________
Name:
Title:
<PAGE>
EXHIBIT B-1 TO THE CREDIT AGREEMENT
FORM OF NOTICE OF REVOLVING CREDIT BORROWING
[Date of Notice of Revolving
Credit Borrowing]
Citibank, N.A., as Administrative Agent
for the Lenders party to the
Credit Agreement referred to below
[Address]
Attention: ____________________
Ladies and Gentlemen:
The undersigned, TRUE NORTH COMMUNICATIONS INC., a Delaware
corporation, refers to the Credit Agreement dated as of May 29, 1998 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"; capitalized terms defined therein unless otherwise defined herein
being used herein as therein defined) among the undersigned, the banks,
financial institutions and other institutional lenders (collectively, the
"Lenders") party thereto and Citibank, N.A., as Administrative Agent for the
Lenders thereunder, and hereby gives you notice, irrevocably, pursuant to
Section 2.02 of the Credit Agreement, that the undersigned hereby requests a
Revolving Credit Borrowing under the Credit Agreement and, in connection
therewith, sets forth below the information relating to such Revolving Credit
Borrowing (the "Proposed Revolving Credit Borrowing") as required by Section
2.02(a) of the Credit Agreement:
(a) The Business Day of the Proposed Revolving Credit Borrowing is
requested to be _________, ____.
(b) The Type of Advances requested to comprise the Proposed Revolving
Credit Borrowing is [Base Rate Advances] [Eurocurrency Rate Advances].
(c) The requested currency of the Proposed Revolving Credit Borrowing
is [US Dollars] [SPECIFY FOREIGN CURRENCY].
(d) The aggregate principal amount of the Proposed Revolving Credit
Borrowing is _______________.
[(e) The initial Interest Period that is requested for each
Eurocurrency Rate Advance to be made as part of the Proposed Revolving
Credit Borrowing is [one week] [one month] [two months] [three months] [six
months].]/1/
The undersigned hereby certifies that the following statements are
true on and as of the date of this Notice of Revolving Credit Borrowing and will
be true on and as of the date of the Proposed Revolving Credit Borrowing:
- -------------------------
/1/ To be included in each Notice of Revolving Credit Borrowing for a Proposed
Revolving Credit Borrowing requested to be comprised of Eurocurrency Rate
Advances.
<PAGE>
B-1-ii
(i) The representations and warranties contained in Section 4.01 of
the Credit Agreement (except for the representation and warranty set forth
in clause (i) of Section 4.01(f) of the Credit Agreement) are correct,
before and after giving effect to the Proposed Revolving Credit Borrowing
and to the application of the proceeds therefrom, as though made on and as
of such date; and
(ii) No event has occurred and is continuing, or would result from the
Proposed Revolving Credit Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
Very truly yours,
TRUE NORTH COMMUNICATIONS INC.
By ___________________________________
Name:
Title:
cc: _______________
<PAGE>
EXHIBIT B-2 TO THE CREDIT AGREEMENT
FORM OF NOTICE OF COMPETITIVE BID BORROWING
[Date of Notice of Competitive
Bid Borrowing]
To each of the Lenders party to the
Credit Agreement referred to below
and to Citibank, N.A., as Administrative
Agent for said Lenders
[Address]
Attention: ____________________
Ladies and Gentlemen:
The undersigned, TRUE NORTH COMMUNICATIONS INC., a Delaware
corporation, refers to the Credit Agreement dated as of May 29, 1998 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"; capitalized terms defined therein unless otherwise defined herein
being used herein as therein defined) among the undersigned, the banks,
financial institutions and other institutional lenders (collectively, the
"Lenders") party thereto and Citibank, N.A., as Administrative Agent for the
Lenders thereunder, and hereby gives you notice, irrevocably, pursuant to
Section 2.03 of the Credit Agreement, that the undersigned hereby requests a
Competitive Bid Borrowing under the Credit Agreement and, in that connection,
sets forth the terms on which such Competitive Bid Borrowing (the "Proposed
Competitive Bid Borrowing") is requested to be made:
(a) Date of Proposed Competitive ________________________
Bid Borrowing
(b) Amount of Proposed Competitive
Bid Borrowing U.S.$____________________
(c) Maturity Date of
Proposed Competitive Bid Borrowing ________________________
(d) Terms of Prepayment of
Proposed Competitive Bid Borrowing [May [not] be prepaid
[with] [without] penalty]
(e) Interest Payment Date(s) ________________________
(f) ____________________ ________________________
(g) ____________________ ________________________
The undersigned hereby certifies that the following statements are true
on and as of the date of this Notice of Competitive Bid Borrowing and will be
true on and as of the date of the Proposed Competitive Bid Borrowing:
(i) The representations and warranties contained in Section 4.01 of
the Credit Agreement (except for the representation and warranty set forth
in clause (i) of Section 4.01(f) of the Credit Agreement) are correct,
before and after giving effect to the Proposed Competitive Bid Borrowing
and to the application of the proceeds therefrom, as though made on and as
of such date; and
(ii) No event has occurred and is continuing, or would result from
the Proposed Competitive Bid Borrowing or from the application of the
proceeds therefrom, that constitutes a Default.
The undersigned hereby confirms that the Proposed Competitive Bid
Borrowing is to be made available to it in accordance with Section 2.03(a)(iv)
of the Credit Agreement.
<PAGE>
B-2-ii
Very truly yours,
TRUE NORTH COMMUNICATIONS INC.
By
_____________________________
Name:
Title:
cc: Citicorp Securities, Inc.
[Address]
Attention: _______________
<PAGE>
EXHIBIT C-1 TO THE CREDIT AGREEMENT
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of May 29, 1998 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement") among True North Communications Inc., a Delaware corporation, the
banks, financial institutions and other institutional lenders (collectively, the
"Lenders") party thereto and Citibank, N.A., as Administrative Agent for the
Lenders thereunder. Capitalized terms not otherwise defined in this Assignment
and Acceptance shall have the same meanings as specified therefor in the Credit
Agreement.
The "Assignor" and the "Assignee" referred to on Schedule I hereto
hereby agree as follows:
1. The Assignor hereby sells and assigns, without recourse except as
to the representations and warranties made by the Assignor herein, to the
Assignee, and the Assignee hereby purchases and assumes from the Assignor, an
interest in and to the Assignor's rights and obligations under the Credit
Agreement as of the Effective Date (as hereinafter defined) (other than in
respect of Competitive Bid Advances and Competitive Bid Notes) equal to the
percentage interest specified on Schedule I hereto of all outstanding rights and
obligations under the Credit Agreement (other than in respect of Competitive Bid
Advances and Competitive Bid Notes). After giving effect to such sale and
assignment, the Assignee's Commitment and the principal amount of the Revolving
Credit Advances owing to the Assignee will be as set forth on Schedule I hereto.
2. The Assignor (a) hereby represents and warrants that it is the
legal and beneficial owner of the interest being sold and assigned by it
hereunder and that such interest is free and clear of any adverse claim; (b)
makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with
the Credit Agreement or any Note or any of the instruments or documents
furnished pursuant thereto, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement or any
Note, or any of the instruments or documents furnished pursuant thereto; (c)
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of the Borrower or the performance or observance by
the Borrower of any of its obligations under or in respect of the Credit
Agreement or any Note, or any of the instruments or documents furnished pursuant
thereto; and (d) attaches the Revolving Credit Note held by the Assignor and
requests that the Administrative Agent exchange such Revolving Credit Note for
[a new Revolving Credit Note payable to the order of the Assignee in an amount
equal to the Commitment assumed by the Assignee pursuant hereto]/1/ [new
Revolving Credit Notes payable to the order of the Assignee in an amount equal
to the Commitment assumed by the Assignee pursuant hereto and the Assignor in an
amount equal to the Commitment retained by the Assignor under the Credit
Agreement, respectively, as specified on Schedule I hereto]./2/
3. The Assignee (a) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
in Section 4.01(e) thereof and such other
- -------------------
/1/ To be included in each Assignment and Acceptance pursuant to which the
Assignor is assigning its entire Commitment.
/2/ To be included in each Assignment and Acceptance pursuant to which the
Assignor is assigning a portion of its Commitment.
<PAGE>
C-1-ii
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (b) agrees
that it will, independently and without reliance upon the Administrative Agent,
the Assignor or any other Lender and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Credit Agreement; (c) confirms that it
is an Eligible Assignee; (d) appoints and authorizes the Administrative Agent
and the Sub-Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement as are delegated to the
Administrative Agent and the Sub-Agent, respectively, by the terms thereof,
together with such powers and discretion as are reasonably incidental thereto;
(e) agrees that it will perform in accordance with their terms all of the
obligations that by the terms of the Credit Agreement are required to be
performed by it as a Lender; (f) specifies as its Applicable Lending Offices the
offices set forth below its name on Schedule I hereto; and (g) attaches any U.S.
Internal Revenue Service forms required to be provided by it under Section 2.14
of the Credit Agreement, and agrees to provide from time to time any successor
or other form prescribed by the Internal Revenue Service as required to be
provided by it under Section 2.14 of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance, it
will be delivered to the Administrative Agent for acceptance and recording in
the Register by the Administrative Agent. The effective date for this Assignment
and Acceptance (the "Effective Date") shall be the date of acceptance and
recording hereof in the Register by the Administrative Agent or such later date
as shall be specified therefor on Schedule I hereto.
5. Upon such acceptance and recording in the Register by the
Administrative Agent, as of the Effective Date, (a) the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and (b) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights (other than its rights under Sections 2.07(c), 2.11, 2.14
and 8.04 of the Credit Agreement to the extent any claim thereunder relates to
an event arising prior to such assignment) and be released from its obligations
(other than its obligations under Section 7.05 to the extent any claim
thereunder relates to an event arising prior to such assignment) under the
Credit Agreement.
6. Upon such acceptance and recording in the Register by the
Administrative Agent, from and after the Effective Date, the Administrative
Agent shall make all payments under the Credit Agreement and the Revolving
Credit Notes in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest, Commitment Fees and Utilization
Fees with respect thereto) to the Assignee. The Assignor and Assignee shall make
all appropriate adjustments in payments under the Credit Agreement and the
Revolving Credit Notes for periods prior to the Effective Date directly between
themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Schedule I hereto by telecopier shall be effective as delivery of
a manually executed counterpart of this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule
I hereto to be executed by their officers thereunto duly authorized, as of the
date specified thereon.
<PAGE>
SCHEDULE I TO ASSIGNMENT AND ACCEPTANCE
Percentage interest assigned: _________%
Assignee's Commitment: $________
Aggregate outstanding principal amount of
Revolving Credit Advances in US Dollars assigned: $________
Average outstanding principal amount of Revolving
Credit Advances in lawful currency of the United
Kingdom of Great Britain and Northern Ireland assigned: (Pounds)_____
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of the Federal Republic of
Germany assigned: DM__________
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of the Republic of France assigned: FFR_________
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of The Swiss Confederation assigned: ____________
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of The Kingdom of the
Netherlands assigned: ____________
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of Japan assigned: ____________
[Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of the European Economic and
Monetary Union assigned:] ____________
Principal amount of Revolving Credit Note payable to Assignee: $___________
Principal amount of Revolving Credit Note payable to Assignor: $___________
Effective Date (if other than the date of acceptance and
recording in the Register by the Administrative Agent):/3/ _________,__
___________
/3/ This date should be no earlier than five Business Days after the delivery
of this Assignment and Acceptance to the Administrative Agent.
<PAGE>
2
[NAME OF ASSIGNOR], as Assignor
By
----------------------------
Name:
Title:
Dated: _______________, ____
[NAME OF ASSIGNEE], as Assignee
By
----------------------------
Name:
Title:
Dated: _______________, 199_
Base Rate Lending Office:
[Address]
Eurocurrency Lending Office:
[Address]
Accepted [and Approved]/4/ this
__________ day of _______________, ____
CITIBANK, N.A., as Administrative Agent
By
--------------------
Name:
Title:
[Approved this __________ day
of _______________, ____
TRUE NORTH COMMUNICATIONS INC.
By
--------------------
- -----------------
/4/ Required if the Assignee is an Eligible Assignee solely by reason of clause
(iii) of the definition of "Eligible Assignee" set forth in Section 1.01 of the
Credit Agreement.
<PAGE>
EXHIBIT C-2 TO THE CREDIT AGREEMENT
FORM OF ASSUMPTION AGREEMENT
[Date]
True North Communications Inc.
101 East Erie Street
Chicago, Illinois 60611-2897
Attention: ________________
Citibank, N.A., as Administrative Agent
for the Lenders party to the
Credit Agreement referred to below
[399 Park Avenue
New York, New York 10043]
Attention: ________________
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of May 29, 1998 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement") among True North Communications Inc., a Delaware corporation (the
"Company"), the banks, financial institutions and other institutional lenders
(collectively, the "Lenders") party thereto and Citibank, N.A., as
Administrative Agent for the Lenders thereunder. Capitalized terms not otherwise
defined in this Agreement shall have the same meanings as specified therefor in
the Credit Agreement.
___________ (the "Non-Consenting Lender") and ___________ (the
"Assuming Lender") hereby agree as follows:
1. The Assuming Lender proposes to become a Lender pursuant to Section
2.17(c) of the Credit Agreement and, in that connection, hereby agrees with
the Administrative Agent and the Company that it shall become a Lender for
all purposes of the Credit Agreement on the applicable Extension Date. In
connection therewith, the Non-Consenting Lender hereby sells and assigns,
without recourse except as to the representations and warranties made by
the Non-Consenting Lender herein, to the Assuming Lender, and the Assuming
Lender hereby purchases and assumes from the Non-Consenting Lender, all
interest in and to the Non-Consenting Lender's rights and obligations under
the Credit Agreement (other than in respect of Competitive Bid Advances and
Competitive Bid Notes) as of the applicable Extension Date, which interest
is equal to _____% of all outstanding rights and obligations of the Lenders
under the Credit Agreement (other than in respect of Competitive Bid
Advances and Competitive Bid Notes) on such Extension Date. After giving
effect to such sale and assignment, the Assuming Lender's Commitment and
the principal amount of the Revolving Credit Advances owing to the Assuming
Lender will be as set forth on Schedule I hereto.
2. The Non-Consenting Lender (a) represents and warrants that it is
the legal and beneficial owner of the interest being sold and assigned by
it hereunder and that such interest is free and clear of any adverse claim;
(b) makes no representation or warranty and assumes no
<PAGE>
C-2-ii
responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or any
of the instruments or documents furnished pursuant thereto, or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement or any Note, or any other instrument or
document furnished pursuant thereto; (c) makes no representation or
warranty and assumes no responsibility with respect to the financial
condition of the Borrower or the performance or observance by the Borrower
of any of its obligations under or in respect of the Credit Agreement or
any Note, or any other instrument or document furnished pursuant thereto;
and (d) attaches the Revolving Credit Note held by the Non-Consenting
Lender and requests that the Administrative Agent exchange such Revolving
Credit Note for a new Revolving Credit Note payable to the order of the
Assuming Lender in an amount equal to the Commitment assumed by the
Assuming Lender pursuant hereto.
3. The Assuming Lender (a) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred
to in Section 4.01(e) thereof and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to
enter into this Assumption Agreement; (b) agrees that it will,
independently and without reliance upon the Administrative Agent, the Non-
Consenting Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the Credit
Agreement; (c) confirms that it is an Eligible Assignee; (d) appoints and
authorizes the Administrative Agent and the Sub-Agent to take such action
as agent on its behalf and to exercise such powers and discretion under the
Credit Agreement as are delegated to the Administrative Agent and the Sub-
Agent, respectively, by the term thereof, together with such powers and
discretion as are reasonably incidental thereto; (e) agrees that it will
perform in accordance with their terms all of the obligations that by the
terms of the Credit Agreement are required to be performed by it as a
Lender; (f) specifies as its Applicable Lending Offices the offices set
forth below its name on the signature page hereof; and (g) attaches any
U.S. Internal Revenue Service forms required to be provided by it under
Section 2.14 of the Credit Agreement, and agrees to provide from time to
time any successor or other form prescribed by the Internal Revenue Service
as required to be provided by it under Section 2.14 of the Credit
Agreement.
4. Following the execution of this Assumption Agreement, it will be
delivered to the Administrative Agent for acceptance and recording in the
Register by the Administrative Agent. The effective date for this
Assumption Agreement (the "Effective Date") shall be the applicable
Extension Date.
5. Upon satisfaction of the applicable conditions set forth in Section
2.17 (including, without limitation, the conditions set forth in Article
III of the Credit Agreement) and upon such acceptance and recording in the
Register by the Administrative Agent, as of the Effective Date, the
Assuming Lender shall be a party to the Credit Agreement and have the
rights and obligations of a Lender thereunder and, subject to the proviso
set forth below, the Non-Consenting Lender shall cease to be a party
thereto; provided, however, that the Non-Consenting Lender's rights and
obligations under Sections 2.07(c), 2.11, 2.14 and 8.04, and its
obligations under Section 7.05, of the Credit Agreement shall survive the
assumption of all of the Non-Consenting Lender's rights and obligations
under the Credit Agreement pursuant to this Assumption Agreement as to
matters occurring prior to the Effective Date.
<PAGE>
C-2-iii
6. This Assumption Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
7. This Assumption Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. Delivery
of an executed counterpart of this Assumption Agreement by telecopier shall
be effective as delivery of a manually executed counterpart of this
Assumption Agreement.
Very truly yours,
[NAME OF ASSUMING LENDER]
By
----------------------------
Name:
Title:
Date: ,
-------------- ----
Base Rate Lending Office:
[Address]
Eurocurrency Lending Office
[Address]
Acknowledged and Agreed to as
of this day of , :
----------- -------------- ----
[NAME OF NON-CONSENTING LENDER]
By
----------------------------
Name:
Title:
<PAGE>
C-2-iv
Accepted and Approved this
day of , :
- --------- -------------- ----
CITIBANK, N.A., as Administrative Agent
By
----------------------------------
Name:
Title:
Approved this day
----------
of , :
---------------- ----
TRUE NORTH COMMUNICATIONS INC.
By
----------------------------------
Name:
Title:
<PAGE>
SCHEDULE I TO ASSIGNMENT AND ACCEPTANCE
Percentage interest assigned: ______%
Assuming Lender's Commitment: $______
Aggregate outstanding principal amount of
Revolving Credit Advances in US Dollars assumed: $______
Average outstanding principal amount of Revolving
Credit Advances in lawful currency of the United
Kingdom of Great Britain and Northern Ireland assumed: (Pounds)______
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of the Federal Republic of
Germany assumed: DM______
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of the Republic of France assumed: FFR______
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of The Swiss Confederation assumed: ______
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of The Kingdom of Netherlands assumed: ______
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of Japan assumed: ______
[Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of the European Economic and
Monetary Union assumed:] ______
Principal amount of Revolving Credit Note payable to Assuming Lender: $______
Effective Date: _________________, ____
<PAGE>
EXHIBIT D-1 TO THE CREDIT AGREEMENT
FORM OF OPINION OF ASSISTANT GENERAL COUNSEL FOR THE BORROWER
May 29, 1998
To each of the Lenders party to the
Credit Agreement referred to below
and to Citibank, N.A., as Administrative
Agent for said Lenders
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(g)(iii) of
the Credit Agreement dated as of May 29, 1998 (the "Credit Agreement") among
True North Communications Inc. (the "Company"), the banks, financial
institutions and other institutional lenders (collectively, the "Lenders") party
thereto and Citibank, N.A., as Administrative Agent for the Lenders thereunder.
Capitalized terms used herein shall have the same meanings as specified therefor
in the Credit Agreement.
I am the Assistant General Counsel of the Company and have acted as
counsel for the Company in connection with the preparation, execution and
delivery of the Credit Agreement.
In that connection, I have examined originals or copies, certified or
otherwise identified to my satisfaction, of:
(1) The Credit Agreement; and
(2) The Revolving Credit Notes of the Company.
I have also examined the originals, or copies certified to my
satisfaction, of such (i) certificates of public officials, (ii) certificates of
officers and representatives of the Company and its Subsidiaries, and (iii)
other documents and records, and I have made such inquiries of officers and
representatives of the Company and its Subsidiaries, as I have deemed relevant
or necessary as the basis for the opinions expressed below. I have relied as to
factual matters upon, and assumed the accuracy of, such certificates and other
statements, documents and records supplied to me by the Company and its
Subsidiaries, and I have assumed the genuineness of all signatures (other than
signatures of officers of the Company and its Subsidiaries) and the authenticity
of all documents submitted to us as originals and the conformity to original
documents of all documents submitted to me as certified or photostatic copies.
My opinions expressed below is limited to the laws of the State of
Illinois and the federal law of the United States.
Based upon the foregoing and subject to the qualifications stated
herein, I am of the opinion that, as of the date hereof:
1. The execution, delivery and performance by the Company of the
Credit Agreement and the Notes, and the consummation of the transactions
contemplated thereby, do not contravene any
<PAGE>
D-1-ii
judgment, order, writ, injunction, decree, determination or award binding on or
affecting the Company of which I am aware.
2. To my knowledge, there is no action, suit, investigation,
litigation, arbitration or proceeding (including, without limitation, any
Environmental Action) affecting the Company or any of its Subsidiaries pending
or threatened before any court, governmental agency or arbitrator that purports
to affect the legality, validity or enforceability of the Credit Agreement or
any Note or the consummation of the transactions contemplated thereby or, except
as described on Schedule 3.01(b) to the Credit Agreement, that, either
individually or in the aggregate, could reasonably be expected to have a
material adverse effect on the business, financial condition, operations,
properties or performance of the Company and its Subsidiaries, taken as a whole.
This opinion is being delivered to you as of the date hereof and is
solely for your benefit in connection with the transaction contemplated in the
Credit Agreement and may not be relied on in any manner or for any purpose by
any other person or entity, nor any copies published, communicated or otherwise
made available in whole or in part to any other person or entity, without my
express prior written consent, except that you may furnish copies hereof to each
party that becomes a Lender after the date hereof pursuant to the Credit
Agreement, and such parties may rely on this opinion as if it had been
originally addressed to them.
I do not express my opinion, either implicitly or otherwise, on any
issue not expressly addressed in numbered Paragraphs 1 and 2. The opinions
expressed above are based solely on facts, laws and regulations existing and in
effect on the date hereof, and I assume no obligation to revise or supplement
these opinions should such facts change or should such laws or regulations be
changed by legislative or regulatory action, judicial decision or otherwise,
notwithstanding that such changes may effect the legal analysis or conclusions
contained in these opinions.
Very truly yours,
[Name]
Assistant General Counsel
<PAGE>
EXHIBIT D-2 TO THE CREDIT AGREEMENT
FORM OF OPINION OF COUNSEL FOR THE BORROWER
May 29, 1998
To each of the Lenders party to the
Credit Agreement referred to below
and to Citibank, N.A., as Administrative
Agent for said Lenders
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(g)(iii) of
the Credit Agreement dated as of May 29, 1998 (the "Credit Agreement") among
True North Communications Inc. (the "Company"), the banks, financial
institutions and other institutional lenders (collectively, the "Lenders") party
thereto and Citibank, N.A., as Administrative Agent for the Lenders thereunder.
Capitalized terms used herein shall have the same meanings as specified therefor
in the Credit Agreement.
We have acted as special counsel for the Company in connection with
the preparation, execution and delivery of the Credit Agreement.
In that connection, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of:
(1) The Credit Agreement;
(2) The Revolving Credit Notes;
(3) The Certificate of Incorporation of the Company and all amendments
thereto (the "Charter");
(4) The by-laws of the Company and all amendments thereto (the "By-
laws"); and
(5) A certificate of the Secretary of State of Delaware, dated May __,
1998, attesting to the continued corporate existence and good standing of
the Company in that state.
We have also examined the originals, or copies certified to our
satisfaction, of the documents listed in a certificate of the Vice President and
Treasurer of our Company, dated the date hereof (the "Certificate"), certifying
that the documents listed in such certificate are all of the indentures, loan or
credit agreements, leases, guarantees, mortgages, security agreements, bonds,
notes and other agreements or instruments, and all of the orders, writs,
judgments, awards, injunctions and decrees, that restrict or purport to restrict
the Company's right to borrow money or to perform the Company's obligations
under the Credit Agreement or the Notes. In addition, we have also examined the
originals, or copies certified to our satisfaction, of such (i) certificates of
public officials, (ii) certificates of officers and representatives of the
Company and its Subsidiaries, and (iii) other documents and records, and we have
made such inquiries of officers and representatives of the Company and its
Subsidiaries, as we have deemed relevant or necessary as the basis for the
opinion expressed below. We have relied as to factual matters upon, and assumed
the
<PAGE>
D-2-ii
accuracy of, such certificates and other statements, documents and records
supplied to us by the Company and its Subsidiaries, and we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals and the conformity to original documents of all documents
submitted to us as certified or photostatic copies.
In rendering the opinions set forth herein, we have assumed that:
(i) all parties to the Credit Agreement, other than the Company, are
duly organized, validly existing and in good standing under the laws of
their respective jurisdictions of organization and have the requisite
corporate power to enter into the Credit Agreement; and
(ii) the Credit Agreement has been duly executed and delivered by all
parties thereto other than the Company and constitutes the valid and
binding obligation of all parties thereto other than the Company,
enforceable against such parties in accordance with its terms.
Our opinion below is limited to the laws of the State of New York, the
General Corporation Law of the State of Delaware and the federal law of the
United States.
Based upon the foregoing and subject to the qualifications stated
herein, we are of the opinion that, as of the date hereof:
1. The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware.
2. The execution, delivery and performance by the Company of the
Credit Agreement and the Notes, and the consummation of the transactions
contemplated thereby, are within the Company's corporate powers, have been duly
authorized by all necessary corporate action, and do not contravene (i) the
Charter or the By-laws, (ii) any law, rule or regulation applicable to the
Company (including, without limitation, any usury laws) or (iii) any contractual
or legal restriction contained in any document listed in the Certificate.
3. No authorization, approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body, or any Person party
to any document listed in the Certificate, is required for the due execution,
delivery and performance by the Company of the Credit Agreement and its Notes or
for the Company's performance of any of the terms thereof.
4. The Credit Agreement and the Notes of the Company have been duly
executed and delivered on behalf of the Company.
5. The Credit Agreement is, and after giving effect to the initial
Borrowing, the Notes of the Company will be, legal, valid and binding
obligations of the Company, enforceable against the Company in accordance with
their respective terms.
The opinions set forth above are subject to the following
qualifications:
(a) Our opinion in paragraph 5 above as to validity, binding effect
and enforceability is subject to the effect of any applicable bankruptcy,
insolvency (including, without limitation, all laws
<PAGE>
D-2-iii
relating to fraudulent transfers), reorganizations, moratorium or similar law
affecting creditors' rights generally.
(b) Our opinion in paragraph 5 above as to enforceability is subject
to (i) the effect of general principles of equity (regardless of whether
considered in a proceeding in equity or at law) and (ii) limitations imposed by
public policy under certain circumstances on the enforceability of provisions
indemnifying a party against liability for its own wrongful or negligent acts.
In applying principles of equity referred to in clause (i) above, a court, among
other things, might not allow a creditor to accelerate maturity of a debt upon
the occurrence of a default deemed immaterial. Such principles applied by a
court might include a requirement that a creditor act reasonably and in good
faith.
(c) We express no opinion as to the enforceability of the consent to
jurisdiction set forth in Section 8.12(a) of the Credit Agreement.
(d) We express no opinion as to the effect of the compliance or
noncompliance of the Administrative Agent or any Lender with any state or
federal laws or regulations applicable to the Administrative Agent or any of the
Lenders because of the Administrative Agent's or any such Lender's legal or
regulatory status, the nature of the business of the Administrative Agent of any
such Lender or the qualification of any such party to conduct business in any
jurisdiction.
The opinions expressed herein are being delivered to you as of the
date hereof and are solely for your benefit in connection with the transactions
contemplated in the Credit Agreement and may not be relied on in any manner or
for any purpose by any other person or entity, nor any copies published,
communicated or otherwise made available in whole or in part to any other person
or entity, without our express prior written consent, except that you may
furnish copies thereof to each party that becomes a Lender after the date hereof
pursuant to the Credit Agreement, and such parties may rely on this opinion as
if it had been originally addressed to them.
We do not express any opinion, either implicitly or otherwise, on any
issue not expressly addressed in numbered Paragraphs 1 through 5. The opinions
expressed above are based solely on facts, laws and regulations existing and in
effect on the date hereof, and we assume no obligation to revise or supplement
this opinion should such facts change or should such laws or regulations be
changed by legislative or regulatory action, judicial decision or otherwise,
notwithstanding that such changes may affect the legal analysis or conclusions
contained in this opinion.
Very truly yours,
<PAGE>
EXHIBIT E TO THE CREDIT AGREEMENT
TERMS OF SUBORDINATION
1. Reference is made to (a) the Credit Agreement dated as of May 29,
1998 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement") among True North Communications Inc., a Delaware corporation
(the "Company"), the banks, financial institutions and other institutional
lenders (collectively, the "Lenders") party thereto and Citibank, N.A., as
administrative agent (together with any successor appointed pursuant to Article
VII of the Credit Agreement, the "Administrative Agent") for the Lenders
thereunder, and (b) the loans and advances made by [NAME OF SUBSIDIARY OF THE
COMPANY MAKING LOANS OR ADVANCES] (the "Subordinated Creditor") to [NAME OF
BORROWER] (the "Payor") (such loans and advances being, collectively, the
"Subordinated Indebtedness"). Capitalized terms not otherwise defined in this
Agreement shall have the same meanings as specified therefor in the Credit
Agreement.
2. The Subordinated Indebtedness is, and shall be, subordinate and
subject in right of payment, to the extent and in the manner hereinafter set
forth, to the prior payment in full of all obligations of the Payor now or
hereafter existing under or in respect of (a) the Credit Agreement and the
Notes, whether direct or indirect, absolute or contingent, and whether for
principal, interest (including, without limitation, interest accruing after the
filing of a petition initiating any proceeding referred to in paragraph 5 below,
whether or not such interest accrues after the filing of such petition for
purposes of the U.S. Federal Bankruptcy Code or is an allowed claim in such
proceeding), fees, commissions, expenses or otherwise and (b) any and all
amendments, modifications, extensions, refinancings, renewals and refundings of
the obligations referred to in clause (a) of this paragraph 2 that are made in
accordance with the applicable terms thereof (all such obligations under clauses
(a) and (b) of this paragraph 2 being, collectively, the "Senior Indebtedness").
For the purposes of the provisions hereof, the Senior Indebtedness shall not be
deemed to have been paid in full until the latest of (i) date of payment in full
in cash of the aggregate principal amount of all outstanding Advances and all
interest accrued thereon, all fees and expenses then due and payable in
connection therewith and all other Senior Indebtedness then due and payable and
(ii) the Revolver Termination Date.
3. So long as the Senior Indebtedness shall not have been paid in
full, the Subordinated Creditor shall not (a) ask, demand or sue for, or except
in the ordinary course of business and so long as no Default under Section
6.01(a) or 6.01(e) of the Credit Agreement or Event of Default shall have
occurred and be continuing, take or receive from the Payor, directly or
indirectly, in cash or other property or by setoff or in any manner (including,
without limitation, from or by way of collateral), payment of all or any of the
Subordinated Indebtedness, (b) commence, or join with any creditor other than
the Administrative Agent in commencing, or directly or indirectly cause the
Payor to commence, or assist the Payor in commencing, any proceeding referred to
in paragraph 5 below or (c) request or accept any collateral or other security
for the Subordinated Indebtedness. If the Subordinated Creditor, in
contravention hereof, shall commence, prosecute or participate in any proceeding
referred to in paragraph 5 below, then the Administrative Agent or any Lender
may intervene and interpose as a defense or plea the terms of this Agreement in
its own name or in the name of the Subordinated Creditor.
4. Upon the occurrence and during the continuance of a Default under
Section 6.01(a) or 6.01(e) of the Credit Agreement or an Event of Default, no
payment or distribution of any assets of the Payor of any kind or character
(including, without limitation, any payment that may be payable by reason of any
other Indebtedness of the Payor being subordinated to payment of the
Subordinated Indebtedness) shall be made by or on behalf of the Payor for or on
account of any Subordinated Indebtedness, and the Subordinated Creditor shall
not ask, demand, sue for, take or receive from the Payor, directly or
indirectly,
<PAGE>
E-ii
in cash or other property or by setoff or in any other manner (including,
without limitation, from or by way of collateral), payment of all or any of the
Subordinated Indebtedness, unless and until such Default or Event of Default
shall have been cured or waived in writing or such Senior Indebtedness shall
have been paid in full, after which the Payor may resume making any and all
required payments in respect of the Subordinated Indebtedness (including any
missed payments).
5. In the event of any dissolution, winding up, liquidation,
arrangement, reorganization, adjustment, protection, relief or composition of
the Payor or its debts, whether voluntary or involuntary, in any bankruptcy,
insolvency, arrangement, reorganization, receivership, relief or other similar
case or proceeding under the United States Federal Bankruptcy Code or any other
federal, state or foreign bankruptcy, insolvency or similar law or upon an
assignment for the benefit of creditors or any other marshalling of the assets
and liabilities of the Payor or otherwise, the Administrative Agent, for its
benefit and the ratable benefit of the Lenders, shall be entitled to receive
payment in full of all of the Senior Indebtedness before the Subordinated
Creditor is entitled to receive any payment or distribution of any kind or
character on account of all or any of the Subordinated Indebtedness, and, to
that end, any payment or distribution of any kind or character (whether in cash,
property or securities) that otherwise would be payable or deliverable upon or
with respect to the Subordinated Indebtedness in any such dissolution, winding
up, liquidation, case, proceeding, assignment, marshalling or otherwise
(including, without limitation, any payment that may be payable by reason of any
other Indebtedness of the Payor being subordinated to payment of the
Subordinated Indebtedness) shall be paid or delivered directly to the
Administrative Agent, for its benefit and for the ratable benefit of the
Lenders, for application (in the case of cash) to, or to be held as collateral
(in the case of noncash property and securities) for, the payment or prepayment
of the Senior Indebtedness until all of the Senior Indebtedness shall have been
paid in full.
6. In the event that any Subordinated Indebtedness is declared due
and payable before its stated maturity, if any, the Administrative Agent, for
its benefit and the ratable benefit of the Lenders, shall be entitled to receive
payment in full of all amounts due or to become due on or in respect of all of
the Senior Indebtedness before the Subordinated Creditor is entitled to receive
any payment (including, without limitation, any payment that may be payable by
reason of the payment of any other Indebtedness of the Payor being subordinated
to the payment of the Subordinated Indebtedness) by the Payor on account of the
Subordinated Indebtedness.
7. Until such time as the Senior Indebtedness has been paid in full,
if any proceeding referred to in paragraph 5 above is commenced by or against
the Payor:
(a) the Administrative Agent is hereby irrevocably authorized and
empowered (in its own name or in the name of the Subordinated Creditor or
otherwise), but shall have no obligation, to demand, sue for, collect and
receive every payment or distribution referred to in paragraph 5 above and
give acquittance therefor, and to file claims and proofs of claim and take
such other action as it may deem necessary or advisable for the exercise or
enforcement of any of the rights or interests of the Administrative Agent
or any of the Lenders hereunder; and
(b) the Subordinated Creditor shall duly and promptly take such action
as the Administrative Agent may request (i) to collect the Subordinated
Indebtedness for the account of the Administrative Agent, for its benefit
and the ratable benefit of the Lenders, and to file appropriate claims or
proofs of claim in respect of the Subordinated Indebtedness, (ii) to
execute and deliver to the Administrative Agent such powers of attorney,
assignments or other instruments as the Administrative Agent may request in
order to enable such Administrative Agent to enforce any
<PAGE>
E-iii
and all claims with respect to the Subordinated Indebtedness and (iii) to
collect and receive any and all payments or distributions that may be
payable or deliverable upon or with respect to the Subordinated
Indebtedness.
8. All payments or distributions upon or with respect to the
Subordinated Indebtedness that are received by the Subordinated Creditor
contrary to the provisions of this Agreement shall be received in trust for the
benefit of the Administrative Agent and the Lenders, shall be segregated from
other property or funds of the Subordinated Creditor and shall be forthwith paid
over or delivered directly to the Administrative Agent, for its benefit and the
ratable benefit of the Lenders, in the same form as so received (with any
necessary endorsement or assignment) to be applied (in the case of cash) to, or
to be held as collateral (in the case of noncash property and securities) for,
the payment or prepayment of the Senior Indebtedness in accordance with the
terms of the Credit Agreement and the Notes, until all of the Senior
Indebtedness shall have been paid in full.
9. To the extent that the Company, the Subordinated Creditor or any
of their respective Subsidiaries or any other guarantor of or provider of
collateral for the Senior Indebtedness shall make any payment on the Senior
Indebtedness that is subsequently invalidated, declared to be fraudulent or
preferential or set aside or is required to be repaid to a trustee, receiver or
any other party under any applicable bankruptcy, insolvency or similar law or
equitable cause (any such payment being a "Voided Payment"), then to the extent
of such Voided Payment, that portion of the Senior Indebtedness that had been
previously satisfied by such Voided Payment shall be reinstated and continue in
full force and effect as if such Voided Payment had never been made. To the
extent that the Subordinated Creditor shall have received any payments
subsequent to the date of the initial receipt of such Voided Payment by the
Administrative Agent or any Lender and such payments have not been invalidated,
declared to be fraudulent or preferential or set aside or required to be repaid
to a trustee, receiver or any other party under any applicable bankruptcy,
insolvency or similar law or equitable cause, the Subordinated Creditor shall be
obligated and hereby agrees that any such payment so made or received shall be
deemed to have been received in trust for the benefit of the Administrative
Agent and the Lenders, and the Subordinated Creditor hereby agrees to pay to the
Administrative Agent and the Lenders, upon demand, the full amount so received
by the Subordinated Creditor during such period of time to the extent necessary
to fully restore to the Administrative Agent and the Lenders the amount of such
Voided Payment, which amount shall be applied as set forth above in the
paragraph 8.
10. The Administrative Agent is hereby authorized to demand specific
performance of the subordination provisions of this Agreement, whether or not
the Payor shall have complied with any of the provisions hereof applicable to
it, at any time when the Subordinated Creditor shall have failed to comply with
any of the subordination provisions of this Agreement. The Subordinated Creditor
hereby irrevocably waives any defense based on the adequacy of a remedy at law
which might be asserted as a bar to such remedy of specific performance.
11. No payment or distribution to the Administrative Agent or any
Lender pursuant to the provisions of this Agreement shall entitle the
Subordinated Creditor to exercise any rights of subrogation in respect thereof,
nor shall the Subordinated Creditor have any right of reimbursement,
restitution, exoneration, contribution or indemnification whatsoever from any
property or assets of the Payor, the Company or any of the other guarantors,
sureties or providers of collateral security for the Senior Indebtedness, or any
right to participate in any claim or remedy of the Administrative Agent or any
Lender against the Payor or the Company, whether or not such claim, remedy or
right arises in equity or under contract, statute or common law (including,
without limitation, the right to take or receive from the Payor
<PAGE>
E-iv
or the Company, directly or indirectly, in cash or other property or by setoff
or in any other manner, payment or security on account of such claim, remedy or
right), until (i) all of the Senior Indebtedness shall have been paid in full
and all of the commitments shall have expired or been terminated and (ii) the
Revolver Termination Date.
12. The holders of the Senior Indebtedness may, at any time and from
time to time, without any consent of or notice to the Subordinated Creditor or
any other holder of the Subordinated Indebtedness and without impairing or
releasing the obligations of the Subordinated Creditor hereunder:
(a) change the manner, place or terms of payment, or change or extend
the time of payment of, or renew payment or change or extend the time or
payment of, or renew or alter, the Senior Indebtedness (including any
change in the rate of interest thereon), or amend in any manner any
agreement under which any of the Senior Indebtedness is outstanding;
(b) release anyone liable in any manner under or in respect of the
Senior Indebtedness;
(c) exercise or refrain from exercising any rights against the Payor
or any other Person; and
(d) apply to the Senior Indebtedness any sums from time to time
received.
13. The foregoing provisions regarding subordination are and are
intended solely for the purpose of defining the relative rights of the holders
of the Senior Indebtedness, on the one hand, and the holders of the Subordinated
Indebtedness, on the other hand. Such provisions are for the benefit of the
holders of the Senior Indebtedness and shall inure to the benefit of, and shall
be enforceable by, the Administrative Agent, on behalf of itself and the
Lenders, directly against the holders of the Subordinated Indebtedness, and no
holder of the Senior Indebtedness shall be prejudiced in its right to enforce
subordination of any of the Subordinated Indebtedness by any act or failure to
act by the Payor or anyone in custody of its property or assets. Nothing
contained in the foregoing provisions is intended to or shall impair, as between
the Payor and the holders of the Subordinated Indebtedness, the obligations of
the Payor to such holders.
14. The agreement incorporating the foregoing provisions will be
governed by, and construed in accordance with, the laws of the State of New
York.
<PAGE>
EXHIBIT 10.2
================================================================================
FIVE-YEAR CREDIT AGREEMENT
Dated as of May 29, 1998
Among
TRUE NORTH COMMUNICATIONS INC.,
as Borrower,
-- --------
and
THE INITIAL LENDERS NAMED HEREIN,
as Initial Lenders,
-- ------- -------
and
CITIBANK, N.A.,
as Administrative Agent
-- -------------- -----
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms...................................................... 1
SECTION 1.02. Computation of Time Periods................................................ 20
SECTION 1.03. Accounting Terms........................................................... 20
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances.............................................. 20
SECTION 2.02. Making the Revolving Credit Advances....................................... 21
SECTION 2.03. The Competitive Bid Advances............................................... 22
SECTION 2.04. Fees....................................................................... 25
SECTION 2.05. Termination or Reduction of the Commitments................................ 26
SECTION 2.06. Repayment of Advances...................................................... 26
SECTION 2.07. Interest on Revolving Credit Advances...................................... 26
SECTION 2.08. Interest Rate Determination and Availability............................... 27
SECTION 2.09. Optional Conversion of Revolving Credit Advances........................... 29
SECTION 2.10. Prepayments of Revolving Credit Advances................................... 29
SECTION 2.11. Increased Costs............................................................ 30
SECTION 2.12. Illegality................................................................. 31
SECTION 2.13. Payments and Computations.................................................. 32
SECTION 2.14. Taxes...................................................................... 33
SECTION 2.15. Sharing of Payments, Etc................................................... 35
SECTION 2.16. Increase in the Aggregate Commitments...................................... 36
SECTION 2.17. Substitution of Currency................................................... 37
SECTION 2.18. Use of Proceeds............................................................ 38
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01 and 2.03............ 38
SECTION 3.02. Conditions Precedent to Each Revolving Credit Borrowing.................... 39
SECTION 3.03. Conditions Precedent to Each Competitive Bid Borrowing..................... 40
SECTION 3.04. Conditions Precedent to Each Increase Date................................. 40
SECTION 3.05. Determinations Under Section 3.01.......................................... 41
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower............................. 41
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants...................................................... 44
SECTION 5.02. Negative Covenants......................................................... 47
SECTION 5.03. Financial Covenants........................................................ 51
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default.......................................................... 52
ARTICLE VII
THE ADMINISTRATIVE AGENT
</TABLE>
<PAGE>
<TABLE>
<S> <C>
SECTION 7.01. Authorization and Action................................................... 54
SECTION 7.02. Administrative Agent's Reliance, Etc....................................... 54
SECTION 7.03. Citibank and Affiliates.................................................... 55
SECTION 7.04. Lender Credit Decision..................................................... 55
SECTION 7.05. Indemnification............................................................ 56
SECTION 7.06. Successor Administrative Agent............................................. 56
SECTION 7.07. The Sub-Agent.............................................................. 57
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc............................................................ 57
SECTION 8.02. Notices, Etc............................................................... 58
SECTION 8.03. No Waiver; Remedies........................................................ 59
SECTION 8.04. Costs and Expenses......................................................... 59
SECTION 8.05. Right of Setoff............................................................ 60
SECTION 8.06. Binding Effect............................................................. 61
SECTION 8.07. Assignments and Participations............................................. 61
SECTION 8.08. Confidentiality............................................................ 65
SECTION 8.09. Governing Law.............................................................. 65
SECTION 8.10. Execution in Counterparts.................................................. 65
SECTION 8.11. Judgment................................................................... 65
SECTION 8.12. Jurisdiction, Etc.......................................................... 66
SECTION 8.13. Waiver of Jury Trial....................................................... 66
</TABLE>
<PAGE>
iii
SCHEDULES
Schedule I - Commitments and Applicable Lending Offices
Schedule 3.01(b) - Disclosed Litigation
Schedule 5.02(b) - Existing Indebtedness
EXHIBITS
Exhibit A-1 - Form of Revolving Credit Promissory Note
Exhibit A-2 - Form of Competitive Bid Promissory Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C-1 - Form of Assignment and Acceptance
Exhibit D-1 - Form of Opinion of Assistant General Counsel of the
Borrower
Exhibit D-2 - Form of Opinion of Special Counsel for the Borrower
Exhibit E - Form of Terms of Subordination
<PAGE>
FIVE-YEAR CREDIT AGREEMENT
DATED AS OF MAY 29, 1998
TRUE NORTH COMMUNICATIONS INC., a Delaware corporation (the
"BORROWER"), the banks, financial institutions and other institutional lenders
(collectively, the "INITIAL LENDERS") listed on the signature pages hereof and
CITIBANK, N.A. ("CITIBANK"), as administrative agent (together with any
successor thereto appointed pursuant to Article VII, the "ADMINISTRATIVE AGENT")
for the Lenders (as hereinafter defined), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
---------------------
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and the plural forms of the terms defined):
"364-DAY CREDIT AGREEMENT" means the Credit Agreement being entered
into on the date of this Agreement among the Borrower, the banks, financial
institutions and other institutional lenders party thereto and Citibank, as
the administrative agent, as such agreement may be amended, supplemented or
otherwise modified hereafter from time to time.
"ADMINISTRATIVE AGENT" has the meaning specified in the recital of
parties to this Agreement.
"ADMINISTRATIVE AGENT'S ACCOUNT" means (a) in the case of Advances
denominated in US Dollars, the account of the Administrative Agent
maintained by the Administrative Agent at Citibank at its office at Two
Penns Way, New Castle, Delaware 19720, Account No. 36852248, Reference:
True North Communications Inc., Attention: Bank Loan Syndications, (b) in
the case of Advances denominated in a Foreign Currency, the account of the
Sub-Agent designated from time to time by the Administrative Agent in a
written notice to the Borrower and the Lenders and (c) such other account
maintained by the Administrative Agent and designated by the Administrative
Agent as such in a written notice to the Borrower and the Lenders.
"ADVANCE" means a Revolving Credit Advance or a Competitive Bid
Advance.
"AFFILIATE" means, with respect to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person. For
purposes of this definition, the term "control" (including the terms
"controlling", "controlled by" and "under common control with") of a Person
means (a) in all cases other than clause (ii) of the definition of
"Eligible Assignee", the possession, direct or indirect, of the power to
vote 10% or more of the Voting Stock of such Person and (b) in all cases,
to direct or cause the direction of the management and policies of such
Person, whether through the ownership of Voting Stock, by contract or
otherwise.
"AGREEMENT VALUE" means, with respect to any Hedge Agreement at any
date of determination, the amount, if any, that would be payable to any
bank thereunder in respect of the
<PAGE>
2
"agreement value" under such Hedge Agreement if such Hedge Agreement were
terminated on such date, calculated as provided in the International Swap
Dealers Association, Inc. Code of Standard Wording, Assumptions and
Provisions for Swaps, 1992 Edition.
"APPLICABLE LENDING OFFICE" means, with respect to each Lender, such
Lender's Base Rate Lending Office in the case of a Base Rate Advance and
such Lender's Eurocurrency Lending Office in the case of a Eurocurrency
Rate Advance and, in the case of a Competitive Bid Advance, the office of
such Lender notified by such Lender to the Administrative Agent as its
Applicable Lending Office with respect to such Competitive Bid Advance.
"APPLICABLE MARGIN" means a percentage per annum equal to the
applicable percentage set forth below for the Performance Level set forth
below:
<TABLE>
<CAPTION>
PERFORMANCE BASE RATE EUROCURRENCY
LEVEL ADVANCES RATE ADVANCES
-------------------------------------------------------------------------
<S> <C> <C>
I 0.000% 0.250%
-------------------------------------------------------------------------
II 0.000% 0.275%
-------------------------------------------------------------------------
III 0.000% 0.350%
-------------------------------------------------------------------------
</TABLE>
The Applicable Margin for each Eurocurrency Rate Advance shall be
determined by reference to the Performance Level in effect from time to
time.
"APPLICABLE PERCENTAGE" means a percentage per annum equal to the
applicable percentage set forth below for the Performance Level set forth
below:
<TABLE>
<CAPTION>
PERFORMANCE
LEVEL FACILITY FEE UTILIZATION FEE
-------------------------------------------------------------------------
<S> <C> <C>
I 0.125% 0.050%
-------------------------------------------------------------------------
II 0.150% 0.050%
-------------------------------------------------------------------------
III 0.200% 0.050%
-------------------------------------------------------------------------
</TABLE>
The Applicable Percentage for the Facility Fee and the Utilization Fee
shall be determined by reference to the Performance Level in effect from
time to time.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance entered
into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent and, if applicable, the Borrower, in substantially the
form of Exhibit C-1 hereto.
"ASSUMING LENDER" has the meaning specified in Section 2.16(d).
"ASSUMPTION AGREEMENT" means any such agreement delivered pursuant to
Section 2.16(d), entered into between an Assuming Lender and the Borrower
and accepted by the Administrative Agent, in form and substance
satisfactory to the Administrative Agent.
<PAGE>
3
"BASE RATE" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the
higher of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate; and
(b) 1/2 of one percent per annum above the Federal Funds Rate.
"BASE RATE ADVANCE" means a Revolving Credit Advance denominated in US
Dollars that bears interest as provided in Section 2.07(a)(i).
"BASE RATE LENDING OFFICE" means, with respect to any Lender, the
office of such Lender specified as its "Base Rate Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance or the
Assumption Agreement pursuant to which it became a Lender, as the case may
be, or such other office of such Lender as such Lender may from time to
time specify to the Borrower and the Administrative Agent for such purpose.
"BORROWER" has the meaning specified in the recital of the parties to
this Agreement.
"BORROWING" means a Revolving Credit Borrowing or a Competitive Bid
Borrowing.
"BUSINESS DAY" means a day of the year on which banks are not required
or authorized by law to close in New York, New York or Chicago, Illinois
and, if the applicable Business Day relates to any Eurocurrency Rate
Advances, on which dealings are carried on in the London interbank market
and, if the applicable Business Day relates to any Eurocurrency Rate
Advances denominated in a Foreign Currency, on which banks are open for
business in London and in the country of issue of the currency of such
Eurocurrency Rate Advance.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response, Compensation
and Liability Information System maintained by the U.S. Environmental
Protection Agency.
"CITIBANK" has the meaning specified in the recital of parties to this
Agreement.
"COMMITMENT" means, with respect to any Lender, the amount set forth
in US Dollars opposite such Lender's name on the signature pages hereof
under the caption "Commitment" or, if such Lender has entered into an
Assignment and Acceptance, the amount set forth for such Lender in the
Register maintained by the Administrative Agent pursuant to Section 8.07(d)
or, if such Lender has entered into an Assumption Agreement, the amount set
forth as the Commitment of such Lender in its Assumption Agreement, in each
case as such amount may be reduced pursuant to Section 2.05 or increased
pursuant to Section 2.16.
"COMMITMENT DATE" has the meaning specified in Section 2.16(b).
"COMMITMENT INCREASE" has the meaning specified in Section 2.16(a).
<PAGE>
4
"COMPETITIVE BID ADVANCE" means an advance denominated in US Dollars
by a Lender to the Borrower as part of a Competitive Bid Borrowing
resulting from the competitive bidding procedure described in Section 2.03.
"COMPETITIVE BID BORROWING" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose offer
to make one or more Competitive Bid Advances as part of such Competitive
Bid Borrowing has been accepted under the competitive bidding procedure
described in Section 2.03.
"COMPETITIVE BID NOTE" means a promissory note of the Borrower payable
to the order of any Lender, in substantially the form of Exhibit A-2
hereto, evidencing the indebtedness of the Borrower to such Lender
resulting from a Competitive Bid Advance made by such Lender.
"COMPETITIVE BID OFFER" means any offer by a Lender to make a
Competitive Bid Advance as part of a proposed Competitive Bid Borrowing
pursuant to Section 2.03(a)(ii).
"COMPETITIVE BID REDUCTION" means, at any time, the deemed use of each
Lender's Commitment in an amount equal to such Lender's Pro Rata Share of
all outstanding Competitive Bid Advances at such time.
"CONFIDENTIAL INFORMATION" means information that is furnished to the
Administrative Agent or any Lender by or on behalf of the Borrower or any
of its Subsidiaries in a writing designated as confidential, but does not
include any such information that is or becomes generally available to the
public or that is or becomes available to the Administrative Agent or such
Lender from a source other than the Borrower or any such Subsidiary that is
not, to the best of the Administrative Agent's or Lender's knowledge,
acting in violation of a confidentiality agreement with the Borrower or any
such Subsidiary.
"CONSOLIDATED" refers to the consolidation of accounts in accordance
with GAAP.
"CONSOLIDATED EBITDA" means, for any period, (a) net income (or net
loss) of the Borrower and its Subsidiaries for such period plus (b) the sum
of all amounts which, in the determination of such net income (or net loss)
for such period, have been deducted for (i) Consolidated Interest Expense,
(ii) income tax expense, (iii) depreciation expense, (iv) amortization
expense and (v) extraordinary and unusual losses deducted in calculating
net income less extraordinary and unusual gains added in calculating net
income, in each case determined in accordance with GAAP for such period.
"CONSOLIDATED INTEREST EXPENSE" means, with respect to the Borrower
and its Subsidiaries for any period, interest expense on all Indebtedness
of the Borrower and its Subsidiaries for such period (without any deduction
for interest income of the Borrower and its Subsidiaries for such period),
determined on a Consolidated basis and in accordance with GAAP, including,
without limitation, (a) in the case of the Borrower, (i) interest expense
accrued during such period in respect of Advances and (ii) all fees accrued
during such period pursuant to Section 2.04, (b) the interest component of
all obligations as lessee under leases that have been or should be, in
accordance with GAAP, capitalized on the Consolidated balance sheet of the
Borrower and its Subsidiaries and (c) the net payment, if any, payable in
connection with interest
<PAGE>
5
rate Hedge Agreements less the net payment, if any, received in connection
with interest rate Hedge Agreements.
"CONSOLIDATED NET WORTH" means, at any date of determination, (a)
total assets of the Borrower and its Subsidiaries (including, without
limitation, all items that are treated as intangibles in accordance with
GAAP) at such date less (b) total liabilities of the Borrower and its
Subsidiaries (including, without limitation, all deferred taxes) at such
date, in each case determined on a Consolidated basis and in accordance
with GAAP for such period; provided, however, that the term "Consolidated
Net Worth" shall not give effect to any cumulative translation adjustments
(where positive or negative) at any such date.
"CONTINUING DIRECTOR" means, for any period, an individual who is a
member of the board of directors of the Borrower on the first day of such
period or who has been nominated to the board of directors of the Borrower
by a majority of the other Continuing Directors who were members of the
board of directors of the Borrower at the time of such nomination.
"CONVERSION", "CONVERT" and "CONVERTED" each refer to a conversion of
Revolving Credit Advances of one Type into Revolving Credit Advances of the
other Type or the continuation of Revolving Credit Advances of the same
Type for another Interest Period pursuant to Section 2.08 or 2.09.
"DEFAULT" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be given
or time elapse or both.
"DISCLOSED LITIGATION" has the meaning specified in Section 3.01(b).
"DOMESTIC SUBSIDIARY" means, at any time, any Subsidiary of the
Borrower that is not a Foreign Subsidiary at such time.
"EFFECTIVE DATE" has the meaning specified in Section 3.01.
"ELIGIBLE ASSIGNEE" means (i) a Lender, (ii) an Affiliate of a Lender
or (iii) any other Person approved by the Administrative Agent and the
Borrower as such, such approval not to be unreasonably withheld or delayed;
provided, however, that (i) neither the Borrower nor an Affiliate of the
Borrower shall qualify as an Eligible Assignee and (ii) the Borrower's
approval shall not be required during the continuance of an Event of
Default.
"ENVIRONMENTAL ACTION" means any judicial or administrative action,
suit, demand, demand letter, claim, notice of noncompliance or violation,
notice of liability or potential liability, proceeding, consent order or
consent agreement relating in any way to any Environmental Law,
Environmental Permit or Hazardous Materials or arising from alleged injury
or threat of injury to health, safety or the environment, including,
without limitation, (a) by any governmental or regulatory authority for
enforcement, cleanup, removal, response, remedial or other actions or
damages and (b) by any governmental or regulatory authority or any third
party for damages, contribution, indemnification, cost recovery,
compensation or injunctive relief.
<PAGE>
6
"ENVIRONMENTAL LAW" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment, decree or
judicial interpretation relating to pollution or protection of the
environment, health, safety or natural resources, including, without
limitation, those relating to the use, handling, transportation, treatment,
storage, disposal, release or discharge of Hazardous Materials.
"ENVIRONMENTAL PERMIT" means any permit, approval, identification
number, license or other authorization required under any Environmental
Law.
"EQUIVALENT" means (a) for any Foreign Currency on any date of
determination, the equivalent in US Dollars of such Foreign Currency
determined by using the quoted spot rate at which the Sub-Agent's principal
office in London, England offers to exchange US Dollars for such Foreign
Currency in London, England at the close of business on the Business Day
immediately preceding such date (unless otherwise expressly stated in this
Agreement) and (b) for US Dollars on any date of determination, the
Equivalent in such Foreign Currency of US Dollars determined by using the
quoted spot rate at which the Sub-Agent's principal office in London,
England offers to exchange such Foreign Currency for US Dollars in London,
England at the close of business on the Business Day immediately preceding
such date (unless otherwise expressly stated in this Agreement).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and the rulings
issued thereunder.
"ERISA AFFILIATE" means any Person that for purposes of Title IV of
ERISA is a member of the Borrower's controlled group, or is under common
control with the Borrower, within the meaning of Section 414 of the
Internal Revenue Code.
"ERISA EVENT" means:
(a) other than with respect to the True North Communications Inc.
Supplemental Pension Plan, which has been terminated effective
December 31, 1997 in a standard termination pursuant to Section
4041(b) of ERISA, (i) the occurrence of a reportable event, within the
meaning of any of paragraphs (1) through (8) of Section 4043(c) of
ERISA, with respect to any Plan unless the 30-day notice requirement
with respect to such event has been waived by the PBGC or (ii) the
requirements of Section 4043(b) of ERISA with a contributing sponsor,
as defined in Section 4001(a)(13) of ERISA, of a Plan, and an event
described in paragraph (9), (10), (11), (12) or (13) of Section
4043(c) of ERISA could reasonably be expected to occur with respect to
such Plan within the following 30 days;
(b) the application for a minimum funding waiver with respect to
a Plan;
(c) other than with respect to the True North Communications Inc.
Supplemental Pension Plan, which has been terminated effective
December 31, 1997 in a standard termination pursuant to Section
4041(b) of ERISA, the provision by the administrator of any Plan of a
notice of intent to terminate such Plan pursuant to Section 4041(a)(2)
of ERISA (including any such notice with respect to a plan amendment
referred to in Section 4041(e) of ERISA);
<PAGE>
7
(d) the cessation of operations at a facility in the
circumstances described in Section 4062(e) of ERISA of the Borrower or
any ERISA Affiliate in the circumstances described in Section 4062(e)
of ERISA;
(e) the withdrawal by the Borrower or any ERISA Affiliate from a
Multiple Employer Plan during a plan year for which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA;
(f) the conditions for the imposition of a lien under Section
302(f) of ERISA shall have been met with respect to any Plan;
(g) the adoption of an amendment to a Plan requiring the
provision of security to such Plan pursuant to Section 307 of ERISA;
or
(h) the institution by the PBGC of proceedings to terminate a
Plan pursuant to Section 4042 of ERISA, or the occurrence of any event
or condition described in Section 4042 of ERISA that could constitute
grounds for the termination of, or the appointment of a trustee to
administer, a Plan.
"EUROCURRENCY LENDING OFFICE" means, with respect to any Lender, the
office of such Lender specified as its "Eurocurrency Lending Office"
opposite its name on Schedule I hereto or in the Assignment and Acceptance
or the Assumption Agreement pursuant to which it became a Lender, as the
case may be (or, if no such office is specified, its Base Rate Lending
Office), or such other office of such Lender as such Lender may from time
to time specify to the Borrower and the Administrative Agent for such
purpose.
"EUROCURRENCY LIABILITIES" has the meaning specified in Regulation D
of the Board of Governors of the Federal Reserve System, as in effect from
time to time.
"EUROCURRENCY RATE" means, for any Interest Period for each
Eurocurrency Rate Advance comprising part of the same Revolving Credit
Borrowing, an interest rate per annum equal to:
(a) the rate per annum at which deposits in US Dollars or in the
applicable Foreign Currency, as the case may be, appear on page 3740
or 3750 (or a successor page thereto) of the Dow Jones Telerate Screen
at or about 11:00 A.M. (London time) two Business Days before the
first day of such Interest Period and for a period equal to such
Interest Period; or
(b) if such rate does not so appear on the Dow Jones Telerate
Screen at such time, the average (rounded upward to the nearest whole
multiple of 1/100 of one percent per annum, if such average is not a
whole multiple of 1/16 of one percent per annum) of the rates per
annum at which deposits in US Dollars or in the applicable Foreign
Currency, as the case may be, are offered by the principal office of
each of the Reference Banks in London, England to prime banks in the
London interbank market at or about 11:00 A.M. (London time) two
Business Days before the first day of such Interest Period in an
amount substantially equal to such Reference Bank's Eurocurrency Rate
Advance comprising part of such Revolving Credit Borrowing to be
outstanding during such
<PAGE>
8
Interest Period and for a period equal to such Interest Period;
provided that any determination of the Eurocurrency Rate for any
Interest Period pursuant to this clause (b) shall be determined by the
Administrative Agent on the basis of applicable rates furnished to and
received by the Administrative Agent from the Reference Banks two
Business Days before the first day of such Interest Period, subject,
however, to the provisions of Section 2.08.
"EUROCURRENCY RATE ADVANCE" means a Revolving Credit Advance
denominated in US Dollars or in a Foreign Currency that bears interest as
provided in Section 2.07(a)(ii).
"EUROCURRENCY RATE RESERVE PERCENTAGE" means, with respect to any
Lender for any Interest Period for any Eurocurrency Rate Advance made or to
be made by such Lender, the reserve percentage applicable two Business Days
before the first day of such Interest Period under regulations issued from
time to time by the Board of Governors of the Federal Reserve System (or
any successor thereto) for determining the actual reserve requirement
(including, without limitation, any emergency, supplemental or other
marginal reserve requirement) for such Lenders with respect to liabilities
or assets consisting of or including Eurocurrency Liabilities (or with
respect to any other category of liabilities that includes deposits by
reference to which the interest rate on Eurocurrency Rate Advances is
determined) having a term equal to such Interest Period.
"EVENTS OF DEFAULT" has the meaning specified in Section 6.01.
"EXISTING CREDIT AGREEMENTS" means, collectively, (a) the $60,000,000
Credit Agreement dated as of January 14, 1997 among the Borrower, the
banks, financial institutions and other institutional lenders party thereto
and Citibank, as administrative agent for the lenders thereunder, and (b)
the $90,000,000 Credit Agreement dated as of January 14, 1997 among the
Borrower, the banks, financial institutions and other institutional lenders
party thereto and Citibank, as administrative agent for the lenders
thereunder, in each case as amended, supplemented or otherwise modified to
the date of this Agreement.
"FACILITY FEE" has the meaning specified in Section 2.04(a).
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight federal funds transactions with members
of the Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the
immediately preceding Business Day) by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day that is a Business
Day, the average of the quotations for such day on such transactions
received by the Administrative Agent from three federal funds brokers of
recognized standing selected by it.
"FIXED CHARGE COVERAGE RATIO" means, with respect to the Borrower and
its Subsidiaries for any period, the ratio of (a) (i) Consolidated EBITDA
for such period plus (ii) Net Rental Expense for such period to (b) (i)
Consolidated Interest Expense for such period plus (ii) Net Rental Expense
for such period.
<PAGE>
9
"FOREIGN CURRENCY" means the lawful currency of the United Kingdom of
Great Britain and Northern Ireland, the lawful currency of the Federal
Republic of Germany, the lawful currency of the Republic of France, the
lawful currency of The Swiss Federation, the lawful currency of The Kingdom
of the Netherlands, the lawful currency of Japan and the lawful currency of
the European Economic and Monetary Union.
"FOREIGN SUBSIDIARY" means a Subsidiary of the Borrower or any of its
Subsidiaries organized under the laws of a jurisdiction other than the
United States or any state thereof.
"FRIENDLY ACQUISITION" means any acquisition of all or any portion of
the shares of capital stock of (or other ownership or profit interests in)
any Person that either (a) has been approved by the board of directors (or
persons performing similar functions) of such Person or (b) is a negotiated
acquisition of shares of capital stock of (or other ownership or profit
interests in) such Person which are not equity securities of a class that
is registered or required to be registered pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles in effect from
time to time in the United States of America and applied on a consistent
basis, subject, however, to the terms of Section 1.03.
"HAZARDOUS MATERIALS" means (a) petroleum and petroleum products,
byproducts or breakdown products, radioactive materials, asbestos-
containing materials, polychlorinated biphenyls and radon gas and (b) any
other chemicals, materials or substances designated, classified or
regulated as "hazardous" or "toxic" or as a "pollutant" or "contaminant"
under any Environmental Law.
"HEDGE AGREEMENTS" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements,
currency future or option contracts and other similar agreements.
"INCREASE DATE" has the meaning specified in Section 2.16(a).
"INCREASING LENDER" has the meaning specified in Section 2.16(b).
"INDEBTEDNESS" means, with respect to any Person (without duplication
for indebtedness or other obligations of such Person):
(a) all indebtedness of such Person for borrowed money;
(b) all obligations of such Person for the deferred purchase
price of property and assets or services (other than trade payables
and other accounts payable incurred in the ordinary course of such
Person's business);
(c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments;
(d) all obligations of such Person created or arising under any
conditional sale or other title retention agreement with respect to
property or assets acquired by such
<PAGE>
10
Person (even though the rights and remedies of the seller or the
lender under such agreement in the event of default are limited to
repossession or sale of such property or assets);
(e) all obligations of such Person as lessee under leases that
have been or should be, in accordance with GAAP, recorded as
capitalized leases;
(f) all obligations, contingent or otherwise, of such Person in
respect of acceptances, letters of credit or similar extensions of
credit;
(g) all obligations of such Person in respect of Hedge
Agreements, valued at the aggregate Agreement Value thereof;
(h) all obligations of such Person to purchase, redeem, retire,
defease or otherwise make any payment in respect of any shares of
capital stock of (or other ownership or profit interests in) such
Person or any other Person, or any warrants, rights or options to
acquire such shares or other interests, valued, in the case of
Redeemable Preferred Stock, at the greater of (i) its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends
and (ii) the aggregate amount payable therefor upon purchase,
redemption, defeasance or payment therefor (but excluding any such
obligation arising solely as a result of the declaration of a dividend
(or similar distribution) on any such shares of capital stock of such
Person which is not then required to have been paid or otherwise
satisfied);
(i) all Indebtedness of other Persons referred to in clauses (a)
through (h) above or clause (j) below guaranteed directly or
indirectly in any manner by such Person, or in effect guaranteed
directly or indirectly by such Person through an agreement (i) to pay
or purchase such Indebtedness or to advance or supply funds for the
payment or purchase of such Indebtedness, (ii) to purchase, sell or
lease (as lessee or lessor) property or assets, or to purchase or sell
services, primarily for the purpose of enabling the debtor to make
payment of such Indebtedness or to assure the holder of such
Indebtedness against loss, (iii) to supply funds to or in any other
manner to invest in the debtor (including any agreement to pay for
property, assets or services irrespective of whether such property or
assets are received or such services are rendered) or (iv) otherwise
to assure a creditor against loss; and
(j) all Indebtedness referred to in clauses (a) through (i) above
secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien on
property and assets (including, without limitation, accounts and
contract rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness.
"INDEMNIFIED PARTY" has the meaning specified in Section 8.04(b).
"INITIAL LENDERS" has the meaning specified in the recital of parties
to this Agreement.
"INTEREST PERIOD" means, for each Eurocurrency Rate Advance comprising
part of the same Revolving Credit Borrowing, the period commencing on the
date of such Eurocurrency Rate Advance or the date of the Conversion of any
Base Rate Advance into such Eurocurrency
<PAGE>
11
Rate Advance and ending on the last day of the period selected by the
Borrower pursuant to the provisions below and, thereafter, with respect to
any such Eurocurrency Rate Advance, each subsequent period commencing on
the last day of the immediately preceding Interest Period and ending on the
last day of the period selected by the Borrower pursuant to the provisions
below. The duration of each such Interest Period shall be one week or one,
two, three or six months, as the Borrower may, upon notice received by the
Administrative Agent not later than 11:00 A.M. (New York City time) on the
third Business Day prior to the first day of such Interest Period, select;
provided, however, that:
(i) the Borrower may not select any Interest Period that ends
after the scheduled Revolver Termination Date;
(ii) Interest Periods commencing on the same date for
Eurocurrency Rate Advances comprising part of the same Revolving
Credit Borrowing shall be of the same duration;
(iii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next succeeding
Business Day, provided, however, that, if such extension would cause
the last day of such Interest Period to occur in the next succeeding
calendar month, the last day of such Interest Period shall occur on
the immediately preceding Business Day; and
(iv) whenever the first day of any Interest Period occurs on a
day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months
in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and the rulings
issued thereunder.
"INVESTMENT" means, with respect to any Person, any loan or advance to
such Person, any purchase or other acquisition of any shares of capital
stock (or other ownership or profit interest), warrants, rights, options,
obligations or other securities of such Person, any purchase or other
acquisition of all or substantially all of the property and assets of such
Person or of any division, branch or other unit of operation thereof, any
capital contribution to such Person or any other investment in such Person,
including, without limitation, any arrangement pursuant to which the
investor incurs Indebtedness of the types referred to in clause (i) or (j)
of the definition of "Indebtedness" set forth above in this Section 1.01 in
respect of such Person.
"LENDER INDEMNIFIED COSTS" has the meaning specified in Section 7.05.
"LENDERS" means, collectively, each Initial Lender, each Assuming
Lender that shall become a party hereto pursuant to Section 2.16 and each
Person that shall become a party hereto pursuant to Section 8.07.
<PAGE>
12
"LEVERAGE RATIO" means, with respect to the Borrower and its
Subsidiaries for any period, the ratio of (a) all Indebtedness of the
Borrower and its Subsidiaries (calculating the amount of Indebtedness under
or in respect of Hedge Agreements on a net basis for all such agreements)
as of the last day of such period, determined on a Consolidated basis in
accordance with GAAP, to (b) Consolidated EBITDA for such period.
"LIEN" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement in
respect of any property or assets or the rights or interests of any Person
therein, including, without limitation, the lien or retained security title
of a conditional vendor and any easement, right of way or other encumbrance
on title to real property.
"MARKETABLE SECURITIES" means any of the following types of
Investments, to the extent owned by the Borrower or any of its Subsidiaries
free and clear of all Liens:
(a) readily marketable obligations issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof or obligations unconditionally guaranteed by
the full faith and credit of the Government of the United States of
America, in each case with a maturity of not more than 360 days from
the date of acquisition thereof;
(b) time deposits with, or insured certificates of deposit or
bankers' acceptances of, any commercial bank that (i) (A) is a Lender
or (B) is organized or, is a foreign branch of a commercial bank that
is organized, under the laws of the United States of America, any
state thereof or the District of Columbia or is the principal banking
subsidiary of a bank holding company organized under the laws of the
United States of America, any state thereof or the District of
Columbia and is a member of the Federal Reserve System, (ii) issues
(or the parent of which issues) commercial paper rated as described
below in clause (d) of this definition and (iii) has combined capital
and surplus of at least $1,000,000,000, in each case with a maturity
of not more than one year from the date of acquisition thereof;
(c) time deposits with, or insured certificates of deposit or
bankers' acceptances of, any commercial bank that (i) is a member of
Organization for Economic Cooperation and Development, (ii) issues
long term non-credit enhanced debt obligations rated at least "A-1"
(or the then equivalent grade) by Moody's or at least "A+" (or the
then equivalent grade) by S&P and (iii) has combined capital and
surplus of at least $1,000,000,000, in each case with a maturity of
not more than one year from the date of acquisition thereof;
(d) commercial paper issued by any Person organized under the
laws of any state of the United States of America and rated at least
"Prime-1" (or the then equivalent grade) by Moody's or at least "A-1"
(or the then equivalent grade) by S&P, in each case with a maturity of
not more than 180 days from the date of acquisition thereof;
(e) Investments, classified in accordance with GAAP as current
assets of the Borrower or any of its Subsidiaries, in money market
investment programs registered under the Investment Company Act of
1940, as amended, which are administered by
<PAGE>
13
financial institutions that have the highest rating obtainable from
either Moody's or S&P, and the portfolios of which are limited solely
to Investments of the character and quality described in clauses (a),
(b) and (d) of this definition;
(f) repurchase agreements entered with any financial institution
organized under the laws of any state of the United States of America
whose (i) long term non-credit enhanced debt obligations are rated at
least "A-2" (or the then equivalent grade) by Moody's or at least "A"
(or the then equivalent grade) by S&P and (ii) commercial paper is
rated as described above in clause (d) of this definition, in each
case with a maturity of not more than 92 days from the date of
acquisition thereof;
(g) general obligations issued or directly and fully guaranteed
or otherwise supported by the full taxation authority of any state of
the United States of America or any municipal corporation or other
agency or instrumentality thereof and rated at one of the two highest
investment grade ratings of Moody's or S&P, in each case with a
maturity of not more than 365 days from the date of acquisition
thereof;
(h) general obligations of any state of the United States of
America or any municipal corporation or other agency or
instrumentality thereof which, based on the escrow, are rated as
described above in clause (g) of this definition and which have been
irrevocably called for redemption and advance refunded through the
deposit in escrow of (i) readily marketable obligation solely of the
type described above in clause (a) of this definition or (ii) other
debt securities which are (A) not callable at the option of the issuer
thereof prior to their stated maturity, (B) irrevocably pledged solely
in support of the payment of all principal of and interest on such
general obligations and (C) in an aggregate principal amount and with
such stated rates of interest as shall be sufficient to pay in full
all principal of and interest and premiums, if any, on such general
obligations as the same become due and payable (as verified by
independent public accountants of recognized standing), in each case
with a maturity of not more than 365 days from the date of acquisition
thereof;
(i) tax-exempt or tax adjustable rate preferred stock issued by a
Person organized under the laws of any state of the United States of
America whose long term non-credit enhanced debt obligations are rated
at least "A-2" (or the then equivalent grade) by Moody's or at least
"A" (or the then equivalent grade) by S&P, in each case with a
maturity of not more than 120 days from the date of acquisition
thereof; and
(j) readily marketable obligations of any Person not otherwise
included in clauses (a) through (i) of this definition in an aggregate
amount of no more than $20,000,000 for all such obligations, so long
as (i) such Person is organized under the laws of any state of the
United States of America and (ii) each such obligation is rated at
least "Aa+" (or the then equivalent grade) by Moody's or at least "AA"
(or the then equivalent grade) by S&P, in each case with a maturity of
not more than 92 days from the date of acquisition thereof.
"MATERIAL ADVERSE CHANGE" means any material adverse change in the
business, financial condition, operations, properties or performance of the
Borrower and its Subsidiaries, taken as a whole.
<PAGE>
14
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, financial condition, operations, properties or performance of the
Borrower and its Subsidiaries, taken as a whole, (b) the rights and
remedies of the Administrative Agent or any Lender under this Agreement or
any Note or (c) the ability of the Borrower to perform its obligations
under this Agreement or any Note.
"MATERIAL SUBSIDIARY" means, at any date of determination, any
Subsidiary of the Borrower that, either individually or together with its
Subsidiaries, taken as a whole, (a) accounted for more than 2% of the
consolidated revenues of the Borrower and its Subsidiaries for the most
recently completed fiscal quarter for which the Lenders have received
Consolidated financial statements of the Borrower and its Subsidiaries
pursuant to Section 5.01(j)(i) or 5.01(j)(ii) or (b) owned more than 2% of
the Consolidated assets of the Borrower and its Subsidiaries as of the last
day of the most recently completed fiscal quarter for which the Lenders
have received Consolidated financial statements of the Borrower and its
Subsidiaries pursuant to Section 5.01(j)(i) or 5.01(j)(ii), in each case
determined in accordance with GAAP for such period.
"MEASUREMENT PERIOD" means, at any date of determination, the most
recently completed four consecutive fiscal quarters of the Borrower and its
Subsidiaries ending on or immediately prior to such date.
"MOODY'S" means Moody's Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate is making
or accruing an obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to make
contributions.
"MULTIPLE EMPLOYER PLAN" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is subject to Title IV of ERISA and
is maintained for employees of the Borrower or any ERISA Affiliate and at
least one Person other than the Borrower and the ERISA Affiliates or (b)
was so maintained and in respect of which the Borrower or any ERISA
Affiliate could reasonably be expected to have liability under Section 4064
or 4069 of ERISA in the event such plan has been or were to be terminated.
"NET RENTAL EXPENSE" means, with respect to the Borrower and its
Subsidiaries for any period, (a) the aggregate amount of all rental payment
obligations of the Borrower and its Subsidiaries under or in respect of
operating leases of real or personal property during such period less (b)
the aggregate amount of all revenues received in cash by the Borrower or
any of its Subsidiaries from any sublessor of such operating leases and all
such rental payment obligations otherwise satisfied on behalf or in lieu of
the Borrower or any of its Subsidiaries, whether by a sublessor or any
other Person during such period.
"NOTE" means a Revolving Credit Note or a Competitive Bid Note.
"NOTICE OF COMPETITIVE BID BORROWING" has the meaning specified in
Section 2.03(a)(i).
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15
"NOTICE OF REVOLVING CREDIT BORROWING" has the meaning specified in
Section 2.02(a).
"NPL" means the National Priorities List under CERCLA.
"OTHER TAXES" has the meaning specified in Section 2.14(b).
"PAYMENT OFFICE" means, with respect to any Foreign Currency, such
office of Citibank as shall be designated by the Administrative Agent as
such in a written notice to the Borrower and the Lenders.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor thereto).
"PERFORMANCE LEVEL" means Performance Level I, Performance Level II or
Performance Level III, as appropriate. For purposes of determining the
Performance Level at any date of determination, no change in the
Performance Level shall be effective until three Business Days after the
date on which the Administrative Agent receives financial statements
pursuant to Section 5.01(j)(i) or 5.01(j)(ii) reflecting such change;
provided, however, that if the Borrower has not submitted to the
Administrative Agent the information required under this sentence within
five Business Days after the date on which such information is required
under Section 5.01(j)(i) or 5.01(j)(ii), as the case may be, the
Performance Level shall be deemed to be at Performance Level III for so
long as such information has not been submitted.
"PERFORMANCE LEVEL I" means, at any date of determination, that the
Borrower and its Subsidiaries shall have maintained a Leverage Ratio of
less than 1.00:1 for the most recently completed Measurement Period prior
to such date.
"PERFORMANCE LEVEL II" means, at any date of determination, that (a)
the Performance Level does not meet the requirements of Performance Level I
and (b) the Borrower and its Subsidiaries shall have maintained a Leverage
Ratio of less than 2.50:1 for the most recently completed Measurement
Period prior to such date.
"PERFORMANCE LEVEL III" means, at any date of determination, that the
Performance Level does not meet the requirements of Performance Level I or
Performance Level II.
"PERMITTED LIENS" means any of the following:
(a) Liens for taxes, assessments and governmental charges or
levies to the extent not required to be paid under Section 5.01(b);
(b) Liens imposed by law, such as materialmen's, mechanics',
carriers', workmen's and repairmen's Liens and other similar Liens
arising in the ordinary course of business securing obligations (other
than Indebtedness for borrowed money) that (i) are not overdue for a
period of more than 90 days or (ii) are being contested in good faith
and by proper proceedings and as to which appropriate reserves are
being maintained in accordance with generally accepted accounting
principles in effect from time to time;
<PAGE>
16
(c) pledges or deposits to secure obligations under workers'
compensation laws or other similar legislation (other than in respect
of employee benefit plans subject to ERISA) or to secure public or
statutory obligations;
(d) Liens securing the performance of, or payment in respect of,
bids, tenders, government contracts (other than for the repayment of
borrowed money), surety and appeal bonds and other obligations of a
similar nature incurred in the ordinary course of business;
(e) any interest or title of a lessor or sublessor and any
restriction or encumbrance to which the interest or title of such
lessor or sublessor may be subject that is incurred in the ordinary
course of business and, either individually or when aggregated with
all other Permitted Liens in effect on any date of determination,
could not be reasonably expected to have a Material Adverse Effect;
and
(f) easements, rights of way, zoning restrictions and other
encumbrances on title to real property that do not, either
individually or in the aggregate, render title to the property
encumbered thereby unmarketable or materially and adversely affect the
use of such property for its present purposes.
"PERSON" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture, limited or unlimited liability company or other entity, or a
government or any political subdivision or agency thereof.
"PLAN" means a Single Employer Plan or a Multiple Employer Plan.
"PREFERRED STOCK" means, with respect to any Person, shares of capital
stock (or other ownership or profit interests) issued by such Person that
are entitled to a preference or priority over any other shares of capital
stock (or other ownership or profit interests) issued by such Person upon
any distribution of such Person's property and assets, whether by dividend
or upon liquidation.
"PRO RATA SHARE" of an amount means, with respect to any Lender at any
time, the product of (a) a fraction the numerator of which is the amount of
such Lender's Commitment at such time and the denominator of which is the
aggregate Commitments of all of the Lenders at such time multiplied by (b)
such amount.
"REDEEMABLE" means, with respect to any capital stock or other
ownership or profit interest, Indebtedness or other right or obligation,
any such right or obligation that (a) the issuer has undertaken to redeem
at a fixed or determinable date or dates, whether by operation of a sinking
fund or otherwise, or upon the occurrence of a condition not solely within
the control of the issuer or (b) is redeemable at the option of the holder.
"REFERENCE BANKS" means Citibank, The First National Bank of Chicago,
Bank of America National Trust and Savings Association and The Chase
Manhattan Bank (or, in each case, any successor in interest thereto) or, in
the event that one of such banks ceases to be a Lender hereunder at any
time, any other commercial bank designated by the Borrower and approved by
the Required Lenders as constituting a "Reference Bank" hereunder.
<PAGE>
17
"REGISTER" has the meaning specified in Section 8.07(d).
"REQUIRED LENDERS" means, at any time, Lenders holding a majority in
interest of the aggregate unpaid principal amount of the Revolving Credit
Advances (determined in the case of any Revolving Credit Advances
denominated in a Foreign Currency by reference to the Equivalent thereof in
US Dollars at such time) owing to all Lenders at such time or, if no such
principal amount is outstanding at such time, Lenders holding a majority in
interest of the Commitments at such time.
"RESPONSIBLE BANK OFFICER" means, with respect to any Lender, any
officer of such Lender holding at least the title of Vice President (or the
equivalent thereto) of such Lender and having direct and ongoing
involvement in the credit decisions made in respect of this Agreement and
the Notes.
"RESPONSIBLE OFFICER" means the Chief Executive Officer, Chief
Financial Officer, Treasurer or General Counsel of the Borrower or any
other officer of the Borrower responsible for overseeing and reviewing
compliance with this Agreement and the Notes.
"REVOLVER TERMINATION DATE" means the earlier of May 29, 2003 and the
date of termination in whole of the aggregate Commitments pursuant to
Section 2.05 or 6.01.
"REVOLVING CREDIT ADVANCE" means an advance by a Lender to the
Borrower as part of a Revolving Credit Borrowing and refers to a Base Rate
Advance or a Eurocurrency Rate Advance (each of which shall be a "Type" of
Revolving Credit Advance).
"REVOLVING CREDIT BORROWING" means a borrowing consisting of
simultaneous Revolving Credit Advances in the same currency and of the same
Type made by each of the Lenders to the Borrower pursuant to Section 2.01.
"REVOLVING CREDIT NOTE" means a promissory note of the Borrower
payable to the order of any Lender, in substantially the form of Exhibit A-
1 hereto, evidencing the aggregate indebtedness of the Borrower to such
Lender resulting from the Revolving Credit Advances made by such Lender.
"S&P" means Standard & Poor's, a division of The McGraw-Hill
Companies, Inc.
"SINGLE EMPLOYER PLAN" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is subject to Title IV of ERISA and
is maintained for employees of the Borrower or any ERISA Affiliate and no
Person other than the Borrower and the ERISA Affiliates or (b) was so
maintained and in respect of which the Borrower could reasonably be
expected to have liability under Section 4069 of ERISA in the event such
plan has been or were to be terminated.
"SUB-AGENT" means Citibank International plc, as sub-agent for the
Revolving Credit Borrowings consisting of Eurocurrency Rate Advances.
<PAGE>
18
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership, joint venture, limited or unlimited liability company, trust
or estate of which (or in which) more than 50% of:
(a) the issued and outstanding shares of capital stock having
ordinary voting power to elect a majority of the board of directors of
such corporation (irrespective of whether at the time shares of
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency);
(b) the interest in the capital or profits of such limited or
unlimited liability company, partnership or joint venture; or
(c) the beneficial interest in such trust or estate,
is at the time, directly or indirectly, owned or controlled by such Person,
by such Person and one or more of its other Subsidiaries or by one or more
of such Person's other Subsidiaries.
"TAXES" has the meaning specified in Section 2.14(a).
"TYPE" has the meaning specified in the definition of "Revolving
Credit Advances" set forth above in this Section 1.01.
"UNUSED COMMITMENT" means, with respect to any Lender at any time, (a)
such Lender's Commitment at such time less (b) the sum of:
(i) the aggregate principal amount of all Revolving Credit
Advances made by such Lender (in its capacity as a Lender) and
outstanding at such time (determined in the case of any such Revolving
Credit Advance denominated in a Foreign Currency by reference to the
Equivalent thereof in US Dollars at such time); and
(ii) such Lender's Pro Rata Share of the aggregate principal
amount of all Competitive Bid Advances made by the Lenders and
outstanding at such time.
"US DOLLARS" and the "$" sign each mean the lawful currency of the
United States of America.
"UTILIZATION FEE" has the meaning specified in Section 2.04(b).
"VOTING STOCK" means shares of capital stock issued by a corporation,
or equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the happening of
such a contingency.
"WHOLLY-OWNED SUBSIDIARY" means, with respect to any Subsidiary of any
Person, the ownership of all of the outstanding shares of capital stock of
(or other ownership or profit interests in) such Subsidiary (other than any
director's qualifying shares or Investments by foreign nationals mandated
by applicable law) by such Person or one or more Wholly-Owned Subsidiaries
of such Person.
<PAGE>
19
"WITHDRAWAL LIABILITY" has the meaning specified in Part I of Subtitle
E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement, in the
---------------------------
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including", the word "through" means "through
and including" and the words "to" and "until" each mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
----------------
specifically defined herein shall be construed in accordance with GAAP;
provided, however, that, if any changes in accounting principles from those used
in the preparation of the Consolidated financial statements of the Borrower and
its Subsidiaries for the fiscal year of the Borrower ended December 31, 1997 (as
is delivered to the Lenders pursuant to Section 4.01(e)) occur by reason of the
promulgation of rules, regulations, pronouncements, opinions or other
requirements of the Financial Accounting Standards Board or the American
Institute of Certified Public Accountants (or successors thereto or agencies
with similar functions) and such changes would affect (or would result in a
change in the method of calculation of) any of the covenants set forth in
Section 5.02 or 5.03, or any of the defined terms related thereto contained in
Section 1.01, then upon the request of any party hereto, the Borrower, the
Administrative Agent and the Lenders shall enter into negotiations in good
faith, if and to the extent necessary, to amend in accordance with Section 8.01
all such covenants or terms as would be affected by such changes in GAAP in such
manner as would maintain the economic terms of such covenants as in effect under
this Agreement, prior to giving effect to the occurrence of any such changes;
and provided further, however, that until the amendment of the covenants and the
defined terms referred to in the immediately preceding proviso becomes
effective, all covenants and defined terms shall be performed, observed and
determined, and any determination of compliance with any such covenant shall be
made, as though no such changes in accounting principles had been made and the
Borrower shall deliver to the Lenders, in addition to the Consolidated financial
statements otherwise required to be delivered to the Lenders under Sections
5.01(j)(i) and 5.01(j)(ii) during such period, a statement of reconciliation
conforming such Consolidated financial statements to GAAP prior to such changes.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
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20
SECTION 2.01. The Revolving Credit Advances. Each Lender severally
-----------------------------
agrees, on the terms and conditions hereinafter set forth, to make Revolving
Credit Advances to the Borrower from time to time on any Business Day during the
period from the Effective Date until the Revolver Termination Date in an
aggregate amount for each such Advance (determined in the case of any Revolving
Credit Advance denominated in a Foreign Currency by reference to the Equivalent
thereof in US Dollars on the date of delivery of the related Notice of Revolving
Credit Borrowing) not to exceed at any time the Unused Commitment of such
Lender. Each Revolving Credit Borrowing shall be in an aggregate amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof (or, in the
case of a Revolving Credit Borrowing consisting of Revolving Credit Advances
denominated in a Foreign Currency, the Equivalent thereof in the Foreign
Currency in which such Revolving Credit Borrowing is denominated determined on
the date of delivery of the related Notice of Revolving Credit Borrowing) (or,
if a proposed Competitive Bid Borrowing is made on the same date as such
Revolving Credit Borrowing, such lesser amount as is equal to the amount by
which the aggregate amount of such Competitive Bid Borrowing requested by the
Borrower to be made on such date exceeds the aggregate amount of Competitive Bid
Advances offered to be made by the Lenders and accepted by the Borrower in
respect of such Competitive Bid Borrowing on such date) and shall consist of
Revolving Credit Advances of the same Type made on the same day by the Lenders
ratably according to their respective Commitments. Within the limits of each
Lender's Unused Commitment, the Borrower may borrow under this Section 2.01,
prepay pursuant to Section 2.10 and reborrow under this Section 2.01.
SECTION 2.02. Making the Revolving Credit Advances. (a) Each
------------------------------------
Revolving Credit Borrowing shall be made on notice, given not later than 11:00
A.M. (New York City time) on the third Business Day prior to the date of the
proposed Revolving Credit Borrowing in the case of a Revolving Credit Borrowing
consisting of Eurocurrency Rate Advances denominated in US Dollars, 4:00 P.M.
(London time) on the third day prior to the date of the proposed Revolving
Credit Borrowing in the case of a Revolving Credit Borrowing consisting of
Eurocurrency Rate Advances denominated in a Foreign Currency, or 11:00 A.M. (New
York City time) on the same Business Day as the day of the proposed Revolving
Credit Borrowing in the case of a Revolving Credit Borrowing consisting of Base
Rate Advances, by the Borrower to the Administrative Agent (and, in the case of
a Revolving Credit Borrowing consisting of Eurocurrency Rate Advances,
simultaneously to the Sub-Agent), which shall give to each Lender prompt notice
thereof by telecopier or telex. Each notice of a Revolving Credit Borrowing (a
"NOTICE OF REVOLVING CREDIT BORROWING") shall be by telephone, confirmed
immediately in writing, or by telecopier or telex, in substantially the form of
Exhibit B-1 hereto, specifying therein the requested (i) date of such Revolving
Credit Borrowing (which shall be a Business Day), (ii) Type of Advances
comprising such Revolving Credit Borrowing, (iii) aggregate principal amount of
such Revolving Credit Borrowing and (iv) in the case of a Revolving Credit
Borrowing consisting of Eurocurrency Rate Advances, currency and initial
Interest Period for each such Revolving Credit Advance. Each Lender shall,
before 1:00 P.M. (New York City time) on the date of each such Revolving Credit
Borrowing consisting of Base Rate Advances or Eurocurrency Rate Advances
denominated in US Dollars, and 11:00 A.M. (London time) on the date of each such
Revolving Credit Borrowing consisting of Eurocurrency Rate Advances denominated
in a Foreign Currency, make available for the account of its Applicable Lending
Office to the Administrative Agent at the applicable Administrative Agent's
Account, in same day funds, such Lender's Pro Rata Share of such Revolving
Credit Borrowing. After the Administrative Agent's receipt of such funds and
upon fulfillment of the applicable conditions set forth in Article III, the
Administrative Agent will make such funds available to the Borrower at the
Administrative Agent's address set forth in Section 8.02(a) or the applicable
Payment Office, as the case may be.
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21
(b) Anything in Section 2.02(a) to the contrary notwithstanding, (i)
the Borrower may not select Eurocurrency Rate Advances for any Revolving Credit
Borrowing if the obligation of the Lenders to make Eurocurrency Rate Advances
shall then be suspended pursuant to Section 2.08 or 2.12 and (ii) Eurocurrency
Rate Advances may not be outstanding as part of more than ten separate Revolving
Credit Borrowings.
(c) Each Notice of Revolving Credit Borrowing shall be irrevocable
and binding on the Borrower. In the case of any Revolving Credit Borrowing that
the related Notice of Revolving Credit Borrowing specifies is to be comprised of
Eurocurrency Rate Advances, the Borrower shall indemnify each Lender against any
loss, cost or reasonable expense incurred by such Lender as a result of any
failure to fulfill on or before the date specified in the related Notice of
Revolving Credit Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss, cost or reasonable expense (excluding
any loss of anticipated profits) incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the
Revolving Credit Advance to be made by such Lender as part of such Revolving
Credit Borrowing when such Revolving Credit Advance, as a result of such
failure, is not made on such date.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Revolving Credit Borrowing that such Lender will
not make available to the Administrative Agent such Lender's Pro Rata Share of
such Revolving Credit Borrowing, the Administrative Agent may assume that such
Lender has made such Pro Rata Share available to the Administrative Agent on the
date of such Revolving Credit Borrowing in accordance with Section 2.02(a) and
the Administrative Agent may, in reliance upon such assumption, make a
corresponding amount available to the Borrower on such date. If and to the
extent that any Lender shall not have so made such Pro Rata Share available to
the Administrative Agent, such Lender and the Borrower severally agree to pay or
to repay to the Administrative Agent forthwith on demand such corresponding
amount, together with interest thereon, for each day from the date such amount
is made available to the Borrower until the date such amount is paid or repaid
to the Administrative Agent, at (i) in the case of the Borrower, the interest
rate applicable at such time to Revolving Credit Advances comprising such
Revolving Credit Borrowing and (ii) in the case of such Lender, the higher of
(i) the Federal Funds Rate and (ii) the cost of funds incurred by the
Administrative Agent in respect of such amount. If such Lender shall pay to the
Administrative Agent such corresponding amount, such amount so paid shall
constitute such Lender's Revolving Credit Advance as part of such Revolving
Credit Borrowing for all purposes of this Agreement.
(e) The failure of any Lender to make the Revolving Credit Advance to
be made by it as part of any Revolving Credit Borrowing shall not relieve any
other Lender of its obligation, if any, hereunder to make its Revolving Credit
Advance on the date of such Revolving Credit Borrowing, but no Lender shall be
responsible for the failure of any other Lender to make the Revolving Credit
Advance to be made by such other Lender on the date of any Revolving Credit
Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each Lender
----------------------------
severally agrees that the Borrower may request Competitive Bid Borrowings under
this Section 2.03 denominated in US Dollars from time to time on any Business
Day during the period from the date hereof until the date occurring seven days
prior to the scheduled Revolver Termination Date in the manner set forth below.
Each Lender may elect (but shall not be obligated to) to make one or more
Competitive Bid Offers in response to a request by the Borrower for a
Competitive Bid Borrowing, and the aggregate outstanding principal amount of the
Competitive Bid Advances made by any Lender at any time may exceed the
<PAGE>
22
Commitment of such Lender at such time; provided that, following the making of
each Competitive Bid Borrowing, the aggregate principal amount of all Advances
(determined in the case of any Revolving Credit Advances denominated in a
Foreign Currency by reference to the Equivalent thereof in US Dollars at such
time) outstanding at such time shall not exceed the aggregate Commitments at
such time (determined without regard to any Competitive Bid Reduction in effect
at such time).
(i) The Borrower shall request a Competitive Bid Borrowing by
delivering notice of such request to each of the Lenders and the
Administrative Agent, by telecopier or telex, not later than 10:45 A.M.
(New York City time) on the day of the proposed Competitive Bid Borrowing
(which shall be a Business Day). Each notice of a Competitive Bid
Borrowing (a "NOTICE OF COMPETITIVE BID BORROWING") shall be in
substantially the form of Exhibit B-2 hereto, specifying therein (A) the
proposed date of such proposed Competitive Bid Borrowing (which shall be a
Business Day), (B) the requested aggregate amount of such proposed
Competitive Bid Borrowing (which shall be at least $3,000,000 or an
integral multiple of $500,000 in excess thereof), (C) the requested
maturity date for repayment of each Competitive Bid Advance to be made as
part of such proposed Competitive Bid Borrowing (which maturity date may
not be earlier than the date occurring one Business Day after the date of
such Competitive Bid Borrowing or later than the scheduled Revolver
Termination Date then in effect), (D) whether or not the Competitive Bid
Advances comprising such proposed Competitive Bid Borrowing may be prepaid
and, if so, whether with or without penalty, (E) the proposed interest
payment date or dates relating thereto and (F) the other terms, if any, to
be applicable to such proposed Competitive Bid Borrowing. Each Notice of
Competitive Bid Borrowing shall be irrevocable and binding on the Borrower.
(ii) Each Lender may, if, in its sole discretion, it elects to do so,
irrevocably make one or more Competitive Bid Offers to the Borrower as part
of such proposed Competitive Bid Borrowing, by notifying the Borrower and
the Administrative Agent, by telex or telecopier, not later than 11:30 A.M.
(New York City time) on the date of such proposed Competitive Bid
Borrowing, of the following: (A) the minimum amount and maximum amount of
each Competitive Bid Advance that such Lender would be willing to make as
part of such proposed Competitive Bid Borrowing; (B) the rate or rates of
interest for each such Competitive Bid Advance (in each case which shall be
fixed rates per annum); and (C) such Lender's Applicable Lending Office
with respect to each such Competitive Bid Advance. If any Lender shall
elect not to make a Competitive Bid Offer as part of a proposed Competitive
Bid Borrowing, such Lender shall so notify the Borrower not later than
11:30 A.M. (New York City time) on the date of the proposed Competitive
Bid Borrowing, and such Lender shall not be obligated to, and shall not,
make any Competitive Bid Advance as part of such Competitive Bid Borrowing;
provided that the failure by any Lender to give such notice shall not cause
such Lender to be obligated to make any Competitive Bid Advance as part of
such proposed Competitive Bid Borrowing.
(iii) The Borrower shall, in turn, before 12:30 P.M. (New York City
time) on the date of a proposed Competitive Bid Borrowing, either:
(A) cancel such Competitive Bid Borrowing by giving each of the
Lenders and the Administrative Agent notice to that effect, and such
Competitive Bid Borrowing shall not be made; or
<PAGE>
23
(B) accept one or more of the Competitive Bid Offers made by any
Lender or Lenders, in its sole discretion but subject to the next two
succeeding sentences, by giving notice to the Lender or Lenders who
made such Competitive Bid Offers (and simultaneous notice thereof to
the Administrative Agent) of the amount of each Competitive Bid
Advance to be made by each Lender as part of such Competitive Bid
Borrowing (in each case which amount shall be equal to or greater than
the minimum amount, and equal to or less than the maximum amount,
notified to the Borrower by such Lender for such Competitive Bid
Advance in its related Competitive Bid Offer), and reject any
remaining Competitive Bid Offers made by the Lenders by giving notice
to that effect to the Lender or Lenders who made such Competitive Bid
Offer (and simultaneous notice thereof to the Administrative Agent);
provided, however, that the Borrower may not accept Competitive Bid
Offers that, in the aggregate, exceed the amount of the requested
Competitive Bid Borrowing specified in the related Notice of
Competitive Bid Borrowing. The Borrower shall accept the Competitive
Bid Offers made by any Lender or Lenders in order of the lowest to the
highest rates of interest offered by such Lenders for a particular
Competitive Bid Borrowing; provided, however, that if any Lender
includes any material conditions or qualifications in any of its
Competitive Bid Offers other than those provided for under the terms
of the related Notice of Competitive Bid Borrowing, the Borrower may
reject such Competitive Bid Offer on the basis of such additional
conditions or qualifications regardless of the rate or rates of
interest included therein. If two or more Lenders have offered the
same rate of interest for a particular Competitive Bid Borrowing and
the amount of accepted Competitive Bid Offers is less than the
aggregate amount of such Competitive Bid Offers, the amount to be
borrowed at such rate of interest shall be allocated among such
Lenders ratably according to the amount that each such Lender offered
at such rate of interest.
If the Borrower accepts one or more of the Competitive Bid Offers made by
any Lender or Lenders pursuant to subclause (iii)(B) of this Section
2.03(a), such notice of acceptance shall be irrevocable and binding on the
Borrower.
(iv) Each Lender that is to make a Competitive Bid Advance as part of
any such Competitive Bid Borrowing shall, before 2:30 P.M. (New York City
time) on the date of such Competitive Bid Borrowing, make available for the
account of its Applicable Lending Office to the Administrative Agent at the
Administrative Agent's Account, in same day funds, such Lender's portion of
such Competitive Bid Borrowing. Upon fulfillment of the applicable
conditions set forth in Article III and after receipt by the Administrative
Agent of such funds, the Administrative Agent will make such funds
available to the Borrower at the Administrative Agent's address set forth
in Section 8.02(a) or at such account as the Borrower shall designate in
writing to the Administrative Agent and the Lenders for such purpose.
Promptly after (i) each Competitive Bid Borrowing, the Borrower will notify
each Lender of the amount of such Competitive Bid Borrowing, the fixed
rates of interest at which each Competitive Bid Advance comprising part of
such Competitive Bid Borrowing were made, the corresponding Competitive Bid
Reduction resulting therefrom and the dates upon which such Competitive Bid
Reduction commenced and will terminate and (ii) the prepayment of any
Competitive Bid Borrowing by the Borrower, the Administrative Agent will
notify each Lender of the amount and date of each such prepayment and the
amount, if any, of the corresponding Competitive Bid Reduction remaining
after giving effect thereto.
<PAGE>
24
(b) Within the limits and on the conditions set forth in this Section
2.03, the Borrower may from time to time borrow under Section 2.03(a), repay
pursuant to Section 2.06(b) or prepay pursuant to Section 2.03(d), and reborrow
under Section 2.03(a).
(c) The Borrower shall have no right to prepay any principal amount
of any Competitive Bid Advance unless, and then only on the terms, specified by
the Borrower in the Notice of Competitive Bid Borrowing delivered pursuant to
Section 2.03(a)(i) and set forth in the Competitive Bid Note evidencing such
Competitive Bid Advance.
(d) The Borrower shall pay interest on the unpaid principal amount of
each Competitive Bid Advance from the date of such Competitive Bid Advance to
the date the principal amount of such Competitive Bid Advance is repaid in full,
at the rate of interest for such Competitive Bid Advance specified by the Lender
making such Competitive Bid Advance in its notice with respect thereto delivered
pursuant to Section 2.03(a)(ii), payable on the interest payment date or dates
specified by the Borrower in the Notice of Competitive Bid Borrowing delivered
pursuant to Section 2.03(a)(i) and provided in the Competitive Bid Note
evidencing such Competitive Bid Advance.
(e) The indebtedness of the Borrower to which any Competitive Bid
Borrowing is made resulting from each Competitive Bid Advance made to the
Borrower as part of such Competitive Bid Borrowing shall be evidenced by a
separate Competitive Bid Note of the Borrower, payable to the order of the
Lender making such Competitive Bid Advance.
SECTION 2.04. Fees. (a) Facility Fee. The Borrower agrees to pay
---- ------------
to the Administrative Agent, for the account of each Lender, a facility fee (the
"FACILITY FEE") on the average daily amount of such Lender's Commitment (whether
used or unused) from the date of this Agreement in the case of each Initial
Lender and from the effective date specified in the Assignment and Acceptance or
the Assumption Agreement, as the case may be, pursuant to which it became a
Lender in the case of each other Lender until, in each case, the Revolver
Termination Date, at a rate per annum equal to the Applicable Percentage in
effect from time to time, payable in arrears quarterly on the tenth day of each
July, October, January and April, commencing July 10, 1998 and on the Revolver
Termination Date.
(b) Utilization Fee. The Borrower agrees to pay to the Administrative
---------------
Agent, for the account of each Lender, for each calendar month in which (i) the
average daily aggregate principal amount of the sum of (A) all Advances
outstanding hereunder during such calendar month and (B) all advances
outstanding under the 364-Day Credit Agreement during such calendar month
exceeds (ii) 50% of the sum of (A) the average daily aggregate Commitments
during such calendar month and (B) the average daily aggregate commitments of
the lenders under the 364-Day Credit Agreement during such calendar month, a
utilization fee (the "UTILIZATION FEE") on the average daily aggregate principal
amount of Advances outstanding during such calendar month at a rate per annum
equal to the Applicable Percentage in effect from time to time, payable in
arrears on each date on which the Facility Fee is payable pursuant to Section
2.04(a). For all purposes of this Section 2.04(b), the aggregate principal
amount of any Revolving Credit Advances denominated in a Foreign Currency and
outstanding hereunder on any day shall be determined by reference to the
Equivalent thereof in US Dollars on such day, and the aggregate principal amount
of any advances denominated in a currency other than US Dollars and outstanding
under the 364-Day Credit Agreement on any day shall be determined by reference
to the Equivalent (as defined in the 364-Day Credit Agreement) thereof in US
Dollars on such day.
<PAGE>
25
(c) Administrative Agent's Fees. The Borrower shall pay to the
---------------------------
Administrative Agent for its own account such fees as may from time to time be
agreed between the Borrower and the Administrative Agent.
SECTION 2.05. Termination or Reduction of the Commitments. The
-------------------------------------------
Borrower shall have the right, upon at least three Business Days' notice to the
Administrative Agent, to terminate in whole or reduce ratably in part the
aggregate Unused Commitments of the Lenders; provided that each partial
reduction shall be in an aggregate amount of $5,000,000 or an integral multiple
of $1,000,000 in excess thereof or, if less, the aggregate amount of all
Commitments at such time.
SECTION 2.06. Repayment of Advances. (a) Revolving Credit Advances.
--------------------- -------------------------
The Borrower shall repay to the Administrative Agent, for the ratable account of
the Lenders, on the Revolver Termination Date the aggregate principal amount of
all Revolving Credit Advances outstanding on such date.
(b) Competitive Bid Advances. The Borrower shall repay to the
------------------------
Administrative Agent, for the account of each Lender that has made a Competitive
Bid Advance, the aggregate outstanding principal amount of each Competitive Bid
Advance made and owing to such Lender on the earlier of (i) the maturity date
therefor, specified in the related Notice of Competitive Bid Borrowing delivered
pursuant to Section 2.03(a)(i) and provided in the Competitive Bid Note
evidencing such Competitive Bid Advance, and (ii) the Revolver Termination Date.
SECTION 2.07. Interest on Revolving Credit Advances. (a) Scheduled
------------------------------------- ---------
Interest. The Borrower shall pay interest on the unpaid principal amount of
- --------
each Revolving Credit Advance owing to each Lender from the date of such
Revolving Credit Advance until such principal amount shall be paid in full, at
the following rates per annum:
(i) Base Rate Advances. During such periods as such Revolving Credit
------------------
Advance is a Base Rate Advance, a rate per annum equal at all times to the
sum of (A) the Base Rate in effect from time to time and (B) the Applicable
Margin in effect from time to time, payable in arrears quarterly on the
tenth day of each July, October, January and April during such periods and
on the date such Base Rate Advance shall be Converted or paid in full.
(ii) Eurocurrency Rate Advances. During such periods as such
--------------------------
Revolving Credit Advance is a Eurocurrency Rate Advance, a rate per annum
equal at all times during each Interest Period for such Revolving Credit
Advance to the sum of (A) the Eurocurrency Rate for such Interest Period
for such Revolving Credit Advance and (B) the Applicable Margin in effect
from time to time during such Interest Period, payable in arrears on the
last day of such Interest Period and, if such Interest Period has a
duration of more than three months, on each day that occurs during such
Interest Period every three months from the first day of such Interest
Period and on the date such Eurocurrency Rate Advance shall be Converted or
paid in full.
(b) Default Interest. Upon the occurrence and during the continuance
----------------
of an Event of Default under Section 6.01(a), the Borrower shall pay interest
on:
(i) the principal amount of each Revolving Credit Advance owing to
each Lender that is not paid when due, payable in arrears on the dates
referred to in Section 2.07(a)(i) or 2.07(a)(ii), at a rate per annum equal
at all times to 2% per annum above the rate per annum
<PAGE>
26
required to be paid on such Revolving Credit Advance pursuant to Section
2.07(a)(i) or 2.07(a)(ii), as applicable;
(ii) the principal amount of each Competitive Bid Advance owing to
any Lender that is not paid when due, payable in arrears on the date or
dates on which interest is payable on such Competitive Bid Advance, at a
rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on such Competitive Bid Advance, under the terms of the
Competitive Bid Note evidencing such Competitive Bid Advance; and
(iii) to the fullest extent permitted by applicable law, the amount
of any interest, fees or other amounts owing to the Administrative Agent or
any Lender under this Agreement or any Note that is not paid when due, from
the date such amount shall be due until such amount shall be paid in full,
payable in arrears on the date such amount shall be paid in full and on
demand, at a rate per annum equal at all times to 2% per annum above the
rate per annum required to be paid on Base Rate Advances pursuant to
Section 2.07(a)(i).
(c) Additional Interest on Eurocurrency Rate Advances. The Borrower
-------------------------------------------------
shall pay to each Lender, so long as and to the extent such Lender shall be
required under regulations of the Board of Governors of the Federal Reserve
System to maintain reserves with respect to liabilities or assets consisting of
or including Eurocurrency Liabilities, additional interest on the unpaid
principal amount of each Eurocurrency Rate Advance owing to such Lender, from
the date of such Eurocurrency Rate Advance until such principal amount is paid
in full, at an interest rate per annum equal at all times to the remainder
obtained by subtracting (a) the Eurocurrency Rate for the applicable Interest
Period for such Eurocurrency Rate Advance from (b) the rate obtained by dividing
such Eurocurrency Rate by a percentage equal to 100% minus the Eurocurrency Rate
Reserve Percentage of such Lender for such Interest Period, payable on each date
on which interest is otherwise payable on such Eurocurrency Rate Advance. Such
Lender shall as soon as practicable provide notice to the Administrative Agent
and the Borrower of any such additional interest arising in connection with any
such Eurocurrency Rate Advance, which notice shall be conclusive and binding,
absent demonstrable error.
SECTION 2.08. Interest Rate Determination and Availability. (a)
--------------------------------------------
Each Reference Bank agrees to furnish to the Administrative Agent timely
information for the purpose of determining the Eurocurrency Rate in accordance
with clause (b) of the definition thereof set forth in Section 1.01. If any one
of the Reference Banks shall not furnish such timely information to the
Administrative Agent for the purpose of determining any such interest rate, the
Administrative Agent shall determine such interest rate on the basis of timely
information furnished by the remaining Reference Banks. The Administrative
Agent shall give prompt notice to the Borrower and the Lenders of the applicable
interest rate determined by the Administrative Agent for purposes of Section
2.07(a)(i) or 2.07(a)(ii), and the rate, if any, furnished by each Reference
Bank for the purpose of determining the applicable interest rate under Section
2.07(a)(ii).
(b) If, with respect to any Eurocurrency Rate Advances, the Required
Lenders notify the Administrative Agent that (i) they are unable to obtain
matching deposits in the London interbank market at or about 11:00 A.M. (London
time) on the second Business Day before the making of a Revolving Credit
Borrowing in sufficient amounts to fund their respective Revolving Credit
Advances as a part of such Revolving Credit Borrowing during such Interest
Period or (ii) the Eurocurrency Rate for any Interest Period for such Advances
will not adequately reflect the cost to such Required Lenders of making, funding
or maintaining their respective Eurocurrency Rate Advances for such Interest
Period,
<PAGE>
27
the Administrative Agent shall forthwith so notify the Borrower and the Lenders,
whereupon (A) each Eurocurrency Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, (1) if such Eurocurrency Rate
Advance is denominated in US Dollars, Convert into a Base Rate Advance and (2)
if such Eurocurrency Rate Advance is denominated in a Foreign Currency, be
exchanged for an Equivalent amount of US Dollars and Converted into a Base Rate
Advance and (B) the obligation of the Lenders to make Eurocurrency Rate Advances
shall be suspended until the Administrative Agent shall notify the Borrower and
the Lenders that the circumstances causing such suspension no longer exist;
provided that, if the circumstances set forth in clause (ii) of this Section
2.08(b) are applicable, the Borrower may elect, by notice to the Administrative
Agent and the Lenders, to continue such Eurocurrency Rate Advances in such
Foreign Currency for Interest Periods having a duration of one month, which
Advances shall thereafter bear interest at a rate per annum equal to the
Applicable Margin plus, for each Lender, the cost to such Lender (expressed as a
rate per annum) of funding its Eurocurrency Rate Advances by whatever means it
reasonably determines to be appropriate. Each Lender shall certify its cost of
funds for each such Interest Period to the Administrative Agent and the Borrower
as soon as practicable (but in any event not later than ten Business Days after
the first day of such Interest Period).
(c) If the Borrower shall fail to select the duration of any
Interest Period for any Eurocurrency Rate Advances made or to be made in
accordance with the provisions contained in the definition of "Interest Period"
set forth in Section 1.01, the Administrative Agent will forthwith so notify the
Borrower and the Lenders and such Eurocurrency Rate Advances will automatically,
on the last day of the then existing Interest Period therefor, Convert into
Eurocurrency Rate Advances denominated in the same currency for an Interest
Period of one month.
(d) On the date on which the aggregate unpaid principal amount of
Eurocurrency Rate Advances comprising any Revolving Credit Borrowing shall be
reduced, by payment or prepayment or otherwise, to less than $1,500,000, such
Advances shall automatically (i) if such Eurocurrency Rate Advances are
denominated in US Dollars, Convert into Base Rate Advances and (ii) if such
Eurocurrency Rate Advances are denominated in a Foreign Currency, be exchanged
for an Equivalent amount of US Dollars and Converted into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any Event of
Default under Section 6.01(a), (i) each Eurocurrency Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
(A) if such Eurocurrency Rate Advance is denominated in US Dollars, Convert into
a Base Rate Advance and (B) if such Eurocurrency Rate Advance is denominated in
a Foreign Currency, be exchanged for an Equivalent amount of US Dollars and
Converted into a Base Rate Advance and (ii) the obligation of the Lenders to
make, or to Convert Advances into, Eurocurrency Rate Advances shall be
suspended.
(f) If fewer than two Reference Banks furnish timely information to
the Administrative Agent for determining the Eurocurrency Rate for any
Eurocurrency Rate Advances in accordance with clause (b) of the definition
thereof set forth in Section 1.01:
(i) the Administrative Agent shall forthwith notify the Borrower and
the Lenders that the interest rate cannot be determined for such
Eurocurrency Rate Advances;
(ii) each such Eurocurrency Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, (A) if such
Eurocurrency Rate Advance is
<PAGE>
28
denominated in US Dollars, Convert into a Base Rate Advance and (B) if such
Eurocurrency Rate Advance is denominated in a Foreign Currency, be
exchanged for an Equivalent amount of US Dollars and Converted into a Base
Rate Advance (or if such Advance is then a Base Rate Advance, will continue
as a Base Rate Advance); and
(iii) the obligation of the Lenders to make Eurocurrency Rate
Advances or to Convert Revolving Credit Advances into Eurocurrency Rate
Advances shall be suspended until the Administrative Agent shall notify the
Borrower and the Lenders that the circumstances causing such suspension no
longer exist.
SECTION 2.09. Optional Conversion of Revolving Credit Advances. The
------------------------------------------------
Borrower may on any Business Day, upon notice given to the Administrative Agent
not later than 11:00 A.M. (New York City time) on the third Business Day prior
to the date of the proposed Conversion and subject to the provisions of Sections
2.08, 2.09 and 2.12, Convert all Revolving Credit Advances of one Type
comprising the same Borrowing into Revolving Credit Advances of the other Type;
provided, however, that:
(a) No Conversion of Revolving Credit Advances shall result (i) in
any Revolving Credit Borrowing failing to comply with the second sentence
of Section 2.01 or in more separate Revolving Credit Borrowings than are
permitted under Section 2.02(b) or (ii) in the aggregate principal amount
of all Advances outstanding at the time of such Conversion exceeding the
aggregate Commitments at such time;
(b) No Eurocurrency Rate Advances of one currency shall be Converted
into Eurocurrency Rate Advances of another currency; and
(c) In the case of any Conversion of Eurocurrency Rate Advances of
one Interest Period into Eurocurrency Rate Advances of another Interest
Period or of Eurocurrency Rate Advances into Base Rate Advances other than
on the last day of an Interest Period therefor, the Borrower shall be
obligated to reimburse the Lenders in respect thereof pursuant to Section
8.04(c).
Each such notice of a Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion (which shall be a Business Day), (ii)
the Revolving Credit Advances to be Converted, and (iii) if such Conversion is
into Eurocurrency Rate Advances, the currency and the duration of the initial
Interest Period for each such Advance. Each notice of Conversion shall be
irrevocable and binding on the Borrower.
SECTION 2.10. Prepayments of Revolving Credit Advances. (a)
----------------------------------------
Optional. The Borrower may, upon at least the same Business Day's notice to the
- --------
Administrative Agent received not later than 11:00 A.M. (New York City time) in
the case of a Revolving Credit Borrowing consisting of Base Rate Advances, and
upon at least two Business Days' notice to the Administrative Agent received not
later than 11:00 A.M. (New York City time) in the case of a Revolving Credit
Borrowing consisting of Eurocurrency Rate Advances, stating the proposed date
and aggregate principal amount of the prepayment, and if such notice is given
the Borrower shall, prepay the outstanding principal amount of the Revolving
Credit Advances comprising part of the same Revolving Credit Borrowing in whole
or ratably in part, together with accrued interest to the date of such
prepayment on the principal amount so prepaid; provided, however, that (a) each
partial prepayment shall be in an aggregate amount of $5,000,000 or an integral
multiple of $1,000,000 in excess thereof (or, in each case, the Equivalent
<PAGE>
29
thereof in the Foreign Currency in which such Revolving Credit Borrowing is
denominated, determined on the date on which the related notice of prepayment is
given) and (b) in the case of any such prepayment of a Eurocurrency Rate Advance
other than on the last day of the then existing Interest Period therefor, the
Borrower shall be obligated to reimburse the Lenders in respect thereof pursuant
to Section 8.04(c).
(b) Mandatory Prepayments. If, on any date, the Administrative Agent
---------------------
notifies the Borrower that (i) the sum of (A) the aggregate principal amount of
all Advances denominated in US Dollars and outstanding on such date and (B) the
Equivalent in US Dollars of the aggregate principal amount of all Advances
denominated in Foreign Currencies and outstanding on such date exceeds (ii) 101%
of the aggregate Commitments on such date, then the Borrower agrees to prepay,
as soon as practicable and in any event within two Business Days of such notice,
the principal amount of any Advances then outstanding in an amount sufficient to
reduce such sum to an amount not to exceed 100% of the aggregate Commitments on
such date, together with (i) any interest accrued to the date of such prepayment
on the aggregate principal amount of Advances so prepaid and (ii) in the case of
any prepayment of Eurocurrency Rate Advances other than on the last day of the
then existing Interest Period therefor, any amounts which the Borrower is
required to reimburse the Lenders for in respect thereof pursuant to Section
8.04(c). The Administrative Agent shall give prompt notice of any prepayment
required under this Section 2.10(b) to the Borrower and the Lenders, and shall
provide prompt notice to the Borrower of any such notice of required prepayment
received by it from any Lender.
SECTION 2.11. Increased Costs. (a) If, due to either (i) the
---------------
introduction of or any change (other than any change by way of imposition or
increase of reserve requirements included in the Eurocurrency Rate Reserve
Percentage) in or in the interpretation of any law or regulation after the date
of this Agreement or (ii) the compliance with any directive, guideline or
request from any central bank or other governmental authority that becomes
effective or is made after the date of this Agreement including, without
limitation, any agency of the European Economic and Monetary Union or similar
monetary or multinational authority (whether or not having the force of law),
there shall be any increase in the cost to any Lender of agreeing to make or
making, funding or maintaining Eurocurrency Rate Advances (excluding for
purposes of this Section 2.11 any such increased costs resulting from (i) Taxes
or Other Taxes (as to which Section 2.14 shall govern) and (ii) changes in the
basis of taxation of overall net income or overall gross income by the United
States or by the foreign jurisdiction or state under the laws of which such
Lender is organized or has its Applicable Lending Office or any political
subdivision thereof), then the Borrower agrees to pay to the Administrative
Agent for the account of such Lender from time to time, upon demand by such
Lender (with a copy of such demand to the Administrative Agent) at any time
within 120 days after the date on which a Responsible Bank Officer of such
Lender knows or has reason to know of its right to additional compensation under
this Section 2.11(a), additional amounts sufficient to compensate such Lender
for such increased cost; provided, however, that if any such Lender fails to
deliver such demand within such 120-day period, such Lender shall only be
entitled to additional compensation for any such costs incurred from and after
the date that is 120 days prior to the date such Lender delivers such demand;
and provided further, however, that before making any such demand, each Lender
agrees to use reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions) to designate a different Applicable Lending Office
if the making of such a designation would avoid the need for, or reduce the
amount of, such increased cost and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender. A certificate as to the
amount of such increased cost, submitted to the Borrower and the Administrative
Agent by such Lender, shall be conclusive and binding for all purposes, absent
demonstrable error.
<PAGE>
30
(b) If any Lender determines that compliance with any law or
regulation, or any directive, guideline or request from any central bank or
other governmental authority that becomes effective or is made after the date of
this Agreement (whether or not having the force of law) affects or would affect
the amount of capital required or expected to be maintained by such Lender or
any corporation controlling such Lender and that the amount of such capital is
increased by or based upon the existence of such Lender's commitment to lend
hereunder and other commitments of this type, then Borrower agrees to pay to the
Administrative Agent for the account of such Lender, upon demand by such Lender
(with a copy of such demand to the Administrative Agent) at any time within 120
days after the date on which a Responsible Bank Officer of such Lender knows or
has reason to know of its right to additional compensation under this Section
2.11(b), additional amounts sufficient to compensate such Lender or such
corporation in the light of such circumstances, to the extent that such Lender
reasonably determines such increase in capital to be allocable to the existence
of such Lender's commitment to lend hereunder; provided, however, that if any
such Lender fails to deliver such demand within such 120-day period, such Lender
shall only be entitled to additional compensation for any such increases in
capital required from and after the date that is 120 days prior to the date such
Lender delivers such demand. A certificate as to such amounts submitted to the
Borrower and the Administrative Agent by such Lender shall be conclusive and
binding for all purposes, absent demonstrable error.
(c) Each Lender will promptly notify the Borrower and the
Administrative Agent of any event of which it has actual knowledge occurring
after the date of this Agreement that would entitle such Lender to additional
compensation under this Section 2.11. No Lender shall request any additional
compensation under this Section 2.11 unless it is generally making similar
requests of other borrowers similarly situated, and each Lender agrees to use a
reasonable basis for calculating amounts allocable to its commitment to lend or
its Advances hereunder.
SECTION 2.12. Illegality. Notwithstanding any other provision of
----------
this Agreement, if any Lender shall notify the Administrative Agent that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Lender or its Eurocurrency
Lending Office to perform its obligations hereunder to make Eurocurrency Rate
Advances or to fund or maintain Eurocurrency Rate Advances, (i) each
Eurocurrency Rate Advance will automatically, on the last day of the Interest
Period then in effect therefor if permitted by applicable law or otherwise upon
demand, (A) if such Advance is a Eurocurrency Rate Advance denominated in US
Dollars, Convert into a Base Rate Advance and (B) if such Advance is a
Eurocurrency Rate Advance denominated in a Foreign Currency, be exchanged for an
Equivalent amount of US Dollars and Converted into a Base Rate Advance, and (ii)
the obligation of the Lenders to make Eurocurrency Rate Advances or to Convert
Revolving Credit Advances into Eurocurrency Rate Advances shall be suspended
until the Administrative Agent shall notify the Borrower and the Lenders that
the circumstances causing such suspension no longer exist; provided, however,
that before making any such demand, each Lender agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
designate a different Eurocurrency Lending Office if the making of such a
designation would allow such Lender or its Eurocurrency Lending Office to
continue to perform its obligations to make Eurocurrency Rate Advances or to
continue to fund or maintain Eurocurrency Rate Advances and would not, in the
reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.
SECTION 2.13. Payments and Computations. (a) The Borrower shall make
-------------------------
each payment required to be made by it hereunder and under the Notes, except
with respect to principal of, interest on and other amounts relating to
Revolving Credit Advances denominated in a Foreign Currency,
<PAGE>
31
not later than 11:00 A.M. (New York City time) on the day when due in US Dollars
to the Administrative Agent at the applicable Administrative Agent's Account, in
same day funds. The Borrower shall make each payment required to be made by it
hereunder and under the Notes with respect to principal of, interest on and
other amounts relating to Revolving Credit Advances denominated in a Foreign
Currency not later than 11:00 A.M. (at the Payment Office for such Foreign
Currency) on the day when due in such Foreign Currency to the Administrative
Agent at the applicable Administrative Agent's Account, in same day funds. The
Administrative Agent will promptly thereafter cause to be distributed like funds
relating to the payment of principal or interest or the Facility Fee or the
Utilization Fee ratably (other than amounts payable pursuant to Section 2.02(c),
2.03, 2.07(c), 2.11, 2.14, 2.16, 8.04 or 8.07) to the Lenders for the account of
their respective Applicable Lending Offices, and like funds relating to the
payment of any other amount payable to any Lender to such Lender for the account
of its Applicable Lending Office, in each case to be applied in accordance with
the terms of this Agreement. Upon its acceptance of an Assignment and Acceptance
and recording of the information contained therein in the Register pursuant to
Section 8.07(c), from and after the effective date specified in such Assignment
and Acceptance, the Administrative Agent shall make all payments hereunder and
under the Notes in respect of the interest assigned thereby to the Lender
assignee thereunder, and the parties to such Assignment and Acceptance shall
make all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves. Upon any Assuming Lender becoming a
Lender hereunder as a result of a Commitment Increase pursuant to Section 2.16,
and upon the Administrative Agent's receipt of such Lender's Assumption
Agreement and recording the information contained therein in the Register from
and after the applicable Increase Date, the Administrative Agent shall make all
payments hereunder and under the Notes in respect of the interest assumed
thereby to the Assuming Lender.
(b) All computations of interest based on clause (a) of the
definition of "Base Rate" set forth in Section 1.01 shall be made by the
Administrative Agent on the basis of a year of 365 or 366 days, as the case may
be, and all computations of interest based on the Eurocurrency Rate or the
Federal Funds Rate or in respect of Competitive Bid Advances and of Facility
Fees and Utilization Fees shall be made by the Administrative Agent, and all
computations of additional interest pursuant to Section 2.07(c) shall be made by
a Lender, on the basis of a year of 360 days, in each case for the actual number
of days (including the first day but excluding the last day) occurring in the
period for which such interest or fees are payable. Each determination by the
Administrative Agent (or, in the case of Section 2.07(c), by a Lender) of an
interest rate hereunder shall be conclusive and binding for all purposes, absent
demonstrable error.
(c) Whenever any payment hereunder or under the Notes shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or fees, as the case may be;
provided, however, that, if such extension would cause payment of interest on or
principal of Eurocurrency Rate Advances to be made in the next following
calendar month, such payment shall be made on the immediately preceding Business
Day.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which such payment is due to the Lenders
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the
<PAGE>
32
Administrative Agent, each Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender, together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative
Agent, at the higher of (i) the Federal Funds Rate and (ii) the cost of funds
incurred by the Administrative Agent in respect of such amount.
(e) To the extent that the Administrative Agent receives funds for
application to the amounts owing by the Borrower under or in respect of this
Agreement or any Note in currencies other than the currency or currencies
required to enable the Administrative Agent to distribute funds to the Lenders
in accordance with the terms of this Section 2.13, the Administrative Agent
shall be entitled to convert or exchange such funds into US Dollars or into a
Foreign Currency, as the case may be, to the extent necessary to enable the
Administrative Agent to distribute such funds in accordance with the terms of
this Section 2.13; provided that the Borrower and each of the Lenders hereby
agree that the Administrative Agent shall not be liable or responsible for any
loss, cost or expense suffered by the Borrower or such Lender as a result of any
conversion or exchange of currencies effected pursuant to this Section 2.13(e)
or as a result of the failure of the Administrative Agent to effect any such
conversion or exchange; and provided further that the Borrower agrees to
indemnify the Administrative Agent for any and all losses, costs and reasonable
expenses incurred by the Administrative Agent for any conversion or exchange of
currencies (or the failure to convert or exchange any currencies) in accordance
with this Section 2.13(e).
SECTION 2.14. Taxes. (a) Any and all payments by the Borrower
-----
hereunder or under the Notes shall be made, in accordance with Section 2.13,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender and the Administrative
Agent, taxes imposed on its overall net income, and franchise taxes imposed on
it in lieu of net income taxes, by the jurisdiction under the laws of which such
Lender or the Administrative Agent, as the case may be, is organized or any
political subdivision thereof and, in the case of each Lender, taxes imposed on
its overall net income, and franchise taxes imposed on it in lieu of net income
taxes, by the jurisdiction of such Lender's Applicable Lending Office or any
political subdivision thereof (all such nonexcluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities in respect of payments
hereunder or under the Notes being collectively referred to as "TAXES"). If the
Borrower shall be required by applicable law to deduct any Taxes from or in
respect of any sum paid or payable hereunder or under any Note to any Lender or
the Administrative Agent, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.14) such Lender or
the Administrative Agent, as the case may be, receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the Borrower
shall make such deductions and (iii) the Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with applicable law. Within 30 days after the date of any payment of Taxes, the
Borrower shall furnish to the Administrative Agent, at its address referred to
in Section 8.02(a), the original or a certified copy of a receipt evidencing
payment thereof.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or under the Notes or
from the execution, delivery or registration of, or any performance under, or
otherwise with respect to, this Agreement or the Notes (collectively, "OTHER
TAXES").
<PAGE>
33
(c) The Borrower agrees not to make, and not to permit any Person
acting on its behalf to make, any payments hereunder or under the Notes through
an account or branch outside the United States, and further agrees that no
payments hereunder or under the Notes shall be made on its behalf by a payor
that is not a United States person. For purposes of this Section 2.14(c) and
Section 2.14(e), the terms "United States" and "United States person" shall have
the meanings specified in Section 7701 of the Internal Revenue Code.
(d) The Borrower shall indemnify each Lender and the Administrative
Agent for the full amount of Taxes or Other Taxes (including, without
limitation, any taxes imposed by any jurisdiction on amounts payable under this
Section 2.14) imposed on or paid by such Lender or the Administrative Agent, as
the case may be, and any liability (including, without limitation, penalties,
interest and expenses) arising therefrom or with respect thereto. This
indemnification shall be made within 30 days from the date such Lender or the
Administrative Agent, as the case may be, makes written demand therefor.
(e) Each Lender organized under the laws of a jurisdiction outside
the United States shall (i) on or prior to the date of its execution and
delivery of this Agreement in the case of each Initial Lender and on the date of
the Assignment and Acceptance or the Assumption Agreement, as the case may be,
pursuant to which it becomes a Lender in the case of each other Lender and (ii)
from time to time thereafter upon the obsolescence of, or after a Responsible
Bank Officer obtains actual knowledge of the occurrence of an event or
circumstance necessitating a change in, the Internal Revenue Service forms
hereinafter referred to (but only so long as such Lender remains lawfully able
to do so), provide each of the Administrative Agent and the Borrower with two
original Internal Revenue Service forms 1001 or 4224, as appropriate, or any
successor or other form prescribed by the Internal Revenue Service, certifying
that such Lender is exempt from or entitled to a reduced rate of United States
withholding tax on payments pursuant to this Agreement or the Notes. If the
forms provided by a Lender at the time such Lender first becomes a party to this
Agreement indicates a United States interest withholding tax rate in excess of
zero, withholding tax at such rate shall be considered excluded from Taxes;
provided, however, that, if at the date of the Assignment and Acceptance or the
Assumption Agreement, as the case may be, pursuant to which a Lender assignee
becomes a party to this Agreement, the Lender assignor was entitled to payments
under Section 2.14(a) in respect of United States withholding tax with respect
to interest paid at such date, then, to such extent, the term "Taxes" shall
include (in addition to withholding taxes that may be imposed in the future or
other amounts otherwise includable in Taxes) United States withholding tax, if
any, applicable with respect to the Lender assignee on such date. If any form or
document referred to in this Section 2.14(e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service form 1001 or
4224, that the Lender reasonably considers to be confidential, the Lender shall
give notice thereof to the Borrower and shall not be obligated to include in
such form or document such confidential information; provided, however, that
notwithstanding any of the provisions of Section 2.14(d), such Lender shall not
be entitled to indemnification under Section 2.14(a) or 2.14(d) with respect to
Taxes imposed by the United States that become payable because such information
is not provided to the Borrower.
(f) Each Initial Lender hereby confirms as of the Effective Date, and
each other Lender hereby confirms as of the effective date of the Assignment and
Acceptance or the Assumption Agreement, as the case may be, pursuant to which it
became a Lender, in favor of the Administrative Agent, that either (i) such
Lender is not resident in the United Kingdom and is beneficially entitled to the
Advances and the interest thereon or (ii) such Lender is a bank as defined for
the purposes of Section 349
<PAGE>
34
of the Income and Corporation Taxes Act of 1988 of the United Kingdom and is
beneficially entitled to the Advances and the interest thereon, and each Lender
hereby agrees to notify the Administrative Agent if there is any change in its
position from that set forth above in this Section 2.14(f).
(g) For any period with respect to which a Lender has failed to
provide the Borrower with the appropriate form described in Section 2.14(e)
(other than if such failure is due to a change in law occurring subsequent to
the date on which a form originally was required to be provided, or if such form
otherwise is not required under the first sentence of Section 2.14(e)),
notwithstanding any of the provisions of Section 2.14(d), such Lender shall not
be entitled to indemnification under Section 2.14(a) or 2.14(d) with respect to
Taxes imposed by the United States that become payable by reason of such
failure; provided, however, that should a Lender become subject to Taxes because
of its failure to deliver a form required hereunder, the Borrower shall take
such steps as the Lender shall reasonably request and, to the extent any such
steps require the expenditure of money, at the expense of such Lender, to assist
the Lender to recover such Taxes.
(h) Any Lender claiming any additional amounts payable pursuant to
this Section 2.14 agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Eurocurrency Lending Office if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender.
SECTION 2.15. Sharing of Payments, Etc. If any Lender shall obtain
------------------------
any payment (whether voluntary, involuntary, through the exercise of any right
of setoff, or otherwise) on account of the Revolving Credit Advances owing to it
(other than pursuant to Section 2.02(c), 2.07(c), 2.11, 2.14, 2.16, 8.04 or
8.07) in excess of its ratable share of payments on account of the Revolving
Credit Advances obtained by all the Lenders, such Lender shall forthwith
purchase from the other Lenders such participations in the Revolving Credit
Advances owing to them as shall be necessary to cause such purchasing Lender to
share the excess payment ratably with each of them; provided, however, that if
all or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase price to the extent of
such recovery, together with an amount equal to such Lender's ratable share
(according to the proportion of (a) the amount of such Lender's required
repayment to (b) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 2.15
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of setoff) with respect to the participation as fully as if
such Lender were the direct creditor of the Borrower in the amount of the
participation.
SECTION 2.16. Increase in the Aggregate Commitments. (a) The
-------------------------------------
Borrower may, at any time but in any event not more than once in any calendar
year prior to the Revolver Termination Date, by notice to the Administrative
Agent, request that the aggregate amount of the Commitments be increased by
$14,000,000 or an integral multiple of $14,000,000 in excess thereof (each a
"COMMITMENT INCREASE") to be effective as of a date that is at least 90 days
prior to the scheduled Revolver Termination Date then in effect (the "INCREASE
DATE") as specified in the related notice to the Administrative Agent; provided,
however, that (i) in no event shall the aggregate amount of the Commitments at
any time exceed $245,000,000, (ii) the Borrower shall concurrently request that
the aggregate commitments of the
<PAGE>
35
lenders under the 364-Day Credit Agreement be ratably increased based on the
respective aggregate Commitments of the Lenders hereunder and the aggregate
commitments of the lenders under the 364-Day Credit Agreement, and such
requested increase under the 364-Day Credit Agreement shall become effective on
the applicable Increase Date, (iii) no Default or Event of Default shall have
occurred and be continuing as of the date of such request and (iv) all of the
applicable conditions set forth in Article III shall be satisfied as of the
applicable Increase Date.
(b) The Administrative Agent shall promptly notify the Lenders of a
request by the Borrower for a Commitment Increase, which notice shall include
(i) the proposed amount of such requested Commitment Increase, (ii) the proposed
Increase Date and (iii) the date by which Lenders wishing to participate in the
Commitment Increase must commit to an increase in the amount of their respective
Commitments (the "COMMITMENT DATE"). Each Lender that is willing to participate
in such requested Commitment Increase (each an "INCREASING LENDER") shall, in
its sole discretion, give written notice to the Administrative Agent on or prior
to the Commitment Date of the amount by which it is willing to increase its
Commitment. If the Lenders notify the Administrative Agent that they are
willing to increase the amount of their respective Commitments by an aggregate
amount that exceeds the amount of the requested Commitment Increase, the
requested Commitment Increase shall be allocated among the Lenders willing to
participate therein in such amounts as are agreed between the Borrower and the
Administrative Agent.
(c) Promptly following each Commitment Date, the Administrative
Agent shall notify the Borrower as to the amount, if any, by which the Lenders
are willing to participate in the requested Commitment Increase. If the
aggregate amount by which the Lenders are willing to participate in any
requested Commitment Increase on any such Commitment Date is less than the
requested Commitment Increase, then the Borrower may extend offers to one or
more Eligible Assignees to participate in any portion of the requested
Commitment Increase that has not been committed to by the Lenders as of the
applicable Commitment Date; provided, however, that the Commitment of each such
Eligible Assignee, when aggregated with the commitment of such Person to lend
under the 364-Day Credit Agreement, shall in no event be less than $10,000,000.
(d) On each Increase Date, each Eligible Assignee that accepts an
offer to participate in a requested Commitment Increase in accordance with
Section 2.16(c) (each an "ASSUMING LENDER") shall become a Lender party to this
Agreement as of such Increase Date and the Commitment of each Increasing Lender
for such requested Commitment Increase shall be so increased by such amount (or
by the amount allocated to such Lender pursuant to the last sentence of Section
2.16(b)) as of such Increase Date; provided, however, that the Administrative
Agent shall have received on or before such Increase Date the following, each
dated such date:
(i) (A) certified copies of resolutions of the board of directors of
the Borrower or the Executive Committee of such board approving the
Commitment Increase and the corresponding modifications to this Agreement,
(B) a certificate, signed by a duly authorized Responsible Officer of the
Borrower, stating that all of the applicable conditions in Article III have
been satisfied and (C) an opinion of counsel for the Borrower, in
substantially the form of Exhibit C hereto;
(ii) an Assumption Agreement from each Assuming Lender, duly executed
by such Assuming Lender, the Administrative Agent and the Borrower; and
<PAGE>
36
(iii) confirmation from each Increasing Lender of the increase in the
amount of its Commitment in a writing satisfactory to the Borrower and the
Administrative Agent.
On each Increase Date, upon fulfillment of the conditions set forth in the
immediately preceding sentence of this Section 2.16(d), the Administrative Agent
shall notify the Lenders (including, without limitation, each Assuming Lender)
and the Borrower, on or before 1:00 P.M. (New York City time), by telecopier or
telex, of the occurrence of the Commitment Increase to be effected on such
Increase Date and shall record in the Register the relevant information with
respect to each Increasing Lender and each Assuming Lender on such date. In
addition, on each Increase Date, each of the Increasing Lenders and the Assuming
Lenders will purchase and assume from the other Lenders such interests in the
Revolving Credit Advances made by such other Lenders and outstanding on such
Increase Date as shall be necessary so that, after giving effect to such
purchases and assumptions, each of the Lenders (including the Increasing Lenders
and the Assuming Lenders) will hold their respective Pro Rata Shares of all
Revolving Credit Advances outstanding on such Increase Date (such purchases and
assumptions to be effected by each of the Increasing Lenders and the Assuming
Lenders making an amount equal to such respective Pro Rata Shares available for
the accounts of their Applicable Lending Offices to the Administrative Agent at
the applicable Administrative Agent's Accounts, in same day funds). The Borrower
hereby agrees to each of the purchases and assumptions described in the
immediately preceding sentence.
SECTION 2.17. Substitution of Currency. If the euro or any other
------------------------
single or unified European currency is implemented pursuant to the commencement
of the third stage of the Economic and Monetary Union (as contemplated in the
Treaty on European Union) or any other change in any Foreign Currency occurs
pursuant to any other applicable law, rule or regulation of any governmental,
monetary or multinational authority, this Agreement (including, without
limitation, the definition of Eurocurrency Rate) will be amended to the extent
determined by the Administrative Agent (acting reasonably and in consultation
with the Borrower) to be necessary to reflect the change in currency and to put
the Lenders and the Borrower in the same position, so far as possible, that they
would have been in if no implementation of the euro or such other single or
unified European currency or other change in such Foreign Currency, as the case
may be, had occurred.
SECTION 2.18. Use of Proceeds. The proceeds of the Advances shall be
---------------
available, and the Borrower agrees that it shall use such proceeds, solely for
general corporate purposes (including, without limitation, acquisitions of the
shares of capital stock of (or other ownership or profit interests in), or all
or any portion of the property and assets of, any Person, and the refinancing of
other Indebtedness of the Borrower) not otherwise prohibited under the terms of
this Agreement.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01
------------------------------------------------------
and 2.03. Sections 2.01 and 2.03 of this Agreement shall become effective on
- --------
and as of the first date (the "EFFECTIVE DATE") on which the following
conditions precedent have been satisfied:
(a) There shall have occurred no Material Adverse Change since
December 31, 1997.
<PAGE>
37
(b) There shall exist no action, suit, investigation, litigation,
arbitration or proceeding (including, without limitation, any Environmental
Action) affecting the Borrower or any of its Subsidiaries pending or, to
the knowledge of the Borrower, threatened before any court, governmental
agency or arbitrator that (i) either individually or in the aggregate,
could be reasonably expected to have a Material Adverse Effect other than
the matters described on Schedule 3.01(b) hereto (the "DISCLOSED
LITIGATION") or (ii) purports to adversely affect the legality, validity or
enforceability of this Agreement or any Note or the consummation of the
transactions contemplated hereby; and there shall have been no adverse
change in the status, or financial effect on the Borrower or any of its
Subsidiaries, of the Disclosed Litigation from that described on Schedule
3.01(b) hereto.
(c) All governmental and third party consents and approvals necessary
in connection with this Agreement and the Notes and with the transactions
contemplated hereby shall have been obtained (without the imposition of any
conditions that are not reasonably acceptable to the Lenders) and shall
remain in effect; and no law or regulation shall be applicable in the
reasonable judgment of the Lenders that restrains, prevents or imposes
materially adverse conditions on this Agreement or any Note or upon any of
the transactions contemplated hereby.
(d) All accrued fees and reasonable out-of-pocket expenses of the
Administrative Agent (including, without limitation, all reasonable accrued
fees and expenses of counsel for the Administrative Agent for which a
reasonably detailed invoice has been delivered to the Borrower at least two
Business Days prior to the Effective Date) shall have been paid in full.
(e) All amounts owing by the Borrower or any of its Subsidiaries
under either of the Existing Credit Agreements shall have been, or
concurrently with any initial Borrowing made on the Effective Date shall
be, paid in full, and all commitments of the lenders thereunder shall have
been, or concurrently with any initial Borrowing made on the Effective Date
shall be, terminated in accordance with the terms of such Agreement.
(f) On the Effective Date, the following statements shall be true and
the Administrative Agent shall have received for the account of each Lender
a certificate signed by a duly authorized Responsible Officer of the
Borrower, dated such date, stating that:
(i) The representations and warranties contained in Section
4.01 are correct on and as of the Effective Date, as though made on
and as of such date;
(ii) No event has occurred and is continuing, or shall occur as
a result of the occurrence of the Effective Date, that constitutes a
Default; and
(iii) The conditions precedent set forth in subsections (a)
through (f) of this Section 3.01 have been satisfied.
(g) The Administrative Agent shall have received on or before the
Effective Date the following, each dated such date, in form and substance
satisfactory to the Administrative Agent and (except for the Revolving
Credit Notes) in sufficient copies for each Lender:
(i) The Revolving Credit Notes to the order of each of the
Lenders, respectively.
<PAGE>
38
(ii) A certificate of the Secretary or an Assistant Secretary of
the Borrower certifying (A) appropriate resolutions of the Board of
Directors of the Borrower approving this Agreement and the Notes, and
of all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to this Agreement and the
Notes and (B) the names and true signatures of the officers of the
Borrower authorized to sign this Agreement and the Notes and the other
documents to be delivered by the Borrower hereunder.
(iii) Favorable opinions of an Assistant General Counsel for the
Borrower, in substantially the form of Exhibit D-1 hereto, and of
Sidley & Austin, special counsel for the Borrower, in substantially
the form of Exhibit D-2 hereto.
(iv) A favorable opinion of Shearman & Sterling, counsel for the
Administrative Agent.
SECTION 3.02. Conditions Precedent to Each Revolving Credit
---------------------------------------------
Borrowing. The obligation of each Lender to make a Revolving Credit Advance on
- ---------
the occasion of each Revolving Credit Borrowing shall be subject to the
conditions precedent that the Effective Date shall have occurred and on the date
of such Revolving Credit Borrowing the following statements shall be true (and
each of the giving of the applicable Notice of Revolving Credit Borrowing and
the acceptance by the Borrower of the proceeds of such Revolving Credit
Borrowing shall constitute a representation and warranty by the Borrower that on
the date of such Revolving Credit Borrowing such statements are true):
(a) The representations and warranties contained in Section 4.01
(except for the representation and warranty set forth in clause (i) of
Section 4.01(f)) are correct on and as of the date of such Revolving Credit
Borrowing, before and after giving effect to such Revolving Credit
Borrowing and to the application of the proceeds therefrom, as though made
on and as of such date; and
(b) No event has occurred and is continuing, or would result from
such Revolving Credit Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
SECTION 3.03. Conditions Precedent to Each Competitive Bid Borrowing.
------------------------------------------------------
The obligation of each Lender that is to make a Competitive Bid Advance as part
of any Competitive Bid Borrowing is subject to the conditions precedent that (a)
the Administrative Agent shall have received the written confirmatory Notice of
Competitive Bid Borrowing with respect thereto, (b) on or before the date of
such Competitive Bid Borrowing, but prior to such Competitive Bid Borrowing, the
Administrative Agent shall have received a Competitive Bid Note payable to the
order of such Lender for each of the one or more Competitive Bid Advances to be
made by such Lender as part of such Competitive Bid Borrowing, dated such date
and in a principal amount equal to the principal amount of the Competitive Bid
Advance to be evidenced thereby and otherwise on such terms as were agreed to
for such Competitive Bid Advance in accordance with Section 2.03, and (c) on the
date of such Competitive Bid Borrowing the following statements shall be true
(and each of the giving of the applicable Notice of Competitive Bid Borrowing
and the acceptance by the Borrower of the proceeds of such Competitive Bid
Borrowing shall constitute a representation and warranty by the Borrower that on
the date of such Competitive Bid Borrowing such statements are true):
<PAGE>
39
(i) The representations and warranties contained in Section 4.01
(except for the representation and warranty set forth in clause (i) of
Section 4.01(f)) are correct on and as of the date of such Competitive Bid
Borrowing, before and after giving effect to such Competitive Bid Borrowing
and to the application of the proceeds therefrom, as though made on and as
of such date; and
(ii) No event has occurred and is continuing, or would result from
such Competitive Bid Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
SECTION 3.04. Conditions Precedent to Each Increase Date. The
------------------------------------------
obligation of each Increasing Lender and each Assuming Lender to effect a
Commitment Increase pursuant to Section 2.16 is subject to the conditions
precedent that (a) the Administrative Agent shall have accepted all of the
Assumption Agreements of the Assuming Lenders and received all of the written
confirmations of increases in the Commitments of the Increasing Lenders for such
Increase Date, (b) on or before such Increase Date, the Administrative Agent
shall have received Revolving Credit Notes payable, in the case of each
Commitment Increase, to the order of each Increasing Lender and each Assuming
Lender, and dated such date and in a principal amount equal to the Commitment of
such Lender on such date (after giving effect to the related Commitment
Increase), and (c) on such Increase Date, the following statements shall be true
(and a duly authorized Responsible Officer of the Borrower shall certify the
completeness and accuracy of such statements to the Administrative Agent and the
Lenders on and as of such Increase Date):
(i) There shall have occurred no Material Adverse Change since
December 31, 1997;
(ii) The representations and warranties contained in Section 4.01
shall be correct on and as of such Increase Date, before and after giving
effect to such date, as though made on and as of such date; and
(iii) No event shall have occurred and be continuing, or shall result
from the occurrence of such Increase Date, that constitutes a Default.
SECTION 3.05. Determinations Under Section 3.01. For purposes of
---------------------------------
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Administrative Agent responsible for the transactions contemplated by
this Agreement shall have received notice from such Lender prior to the date
that the Borrower, by notice to the Lenders, designates as the proposed
Effective Date, specifying its objection thereto. The Administrative Agent
shall promptly notify the Lenders of the occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The
----------------------------------------------
Borrower represents and warrants as follows:
<PAGE>
40
(a) The Borrower and each of the Material Subsidiaries (i) are
corporations, limited partnerships or limited liability companies duly
organized, validly existing and, to the extent applicable, in good standing
under the laws of their respective jurisdictions of organization, (ii) to
the extent applicable, are duly qualified and in good standing as foreign
corporations, limited partnerships or limited liability companies in each
other jurisdiction in which they own or lease property or assets or in
which the conduct of their respective businesses requires them to so
qualify or be licensed, except where the failure to so qualify or be
licensed, either individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect, and (iii) have all requisite
power and authority to own or lease and operate their respective property
and assets and to carry on their respective businesses as conducted.
(b) The execution, delivery and performance by the Borrower of this
Agreement and the Notes, and the consummation of the transactions
contemplated hereby, are within the Borrower's corporate, partnership or
limited liability company powers, have been duly authorized by all
necessary action, and do not contravene (i) the Borrower's charter or by-
laws (or similar organizational documents) or (ii) any law, regulation,
judgment, order, writ, injunction, decree, determination or award or any
contractual restriction binding on or affecting the Borrower.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body or any other
third party is required for the due execution, delivery and performance by
the Borrower of this Agreement or any Note.
(d) This Agreement has been, and each of the Notes when delivered
hereunder will have been, duly executed and delivered by the Borrower.
This Agreement is, and each of the Notes when delivered hereunder will be,
the legal, valid and binding obligation of the Borrower, enforceable
against the Borrower in accordance with their respective terms, except to
the extent that the enforceability thereof may be limited by the effect of
any applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws now or hereafter in effect relating to or affecting creditors'
rights generally or by general principles of equity.
(e) (i) The Consolidated balance sheet of the Borrower and its
Subsidiaries as at December 31, 1997, and the related Consolidated
statements of income, retained earnings and cash flows of the Borrower and
its Subsidiaries for the fiscal year then ended, accompanied by an
unqualified opinion of Arthur Andersen & Co., independent public
accountants, and (ii) the Consolidated balance sheet of the Borrower and
its Subsidiaries as at March 31, 1998, and the related Consolidated
statements of income, retained earnings and cash flows of the Borrower and
its Subsidiaries for the three months then ended, duly certified by the
Chief Financial Officer of the Borrower, copies of all of which have been
furnished to each Lender, fairly present, subject, in the case of such
balance sheet as at March 31, 1998 and such related statements of income,
retained earnings and cash flows for the three months then ended, to year-
end audit adjustments, the Consolidated financial condition of the Borrower
and its Subsidiaries as at such dates and the Consolidated results of the
operations of the Borrower and its Subsidiaries for the period ended on
such dates, all in accordance with generally accepted accounting principles
consistently applied.
<PAGE>
41
(f) There is no action, suit, investigation, litigation, arbitration
or proceeding (including, without limitation, any Environmental Action)
affecting the Borrower or any of its Subsidiaries pending or, to the
knowledge of the Borrower, threatened before any court, governmental agency
or arbitrator that (i) either individually or in the aggregate, could be
reasonably expected to have a Material Adverse Effect other than the
Disclosed Litigation or (ii) purports to adversely affect the legality,
validity or enforceability of this Agreement or any Note or the
consummation of the transactions contemplated hereby.
(g) The Borrower is not engaged in the business of extending credit
for the purpose of purchasing or carrying "margin stock" (within the
meaning of Regulation U of the Board of Governors of the Federal Reserve
System). Following application of the proceeds of each Advance, not more
than 25% of the value of the property and assets of the Borrower, either
individually or together with its Subsidiaries, taken as a whole, subject
to the provisions of Section 5.02(a) or subject to any restriction
contained in any agreement or instrument between the Borrower and any
Lender or any Affiliate of any Lender relating to Indebtedness and within
the scope of Section 6.01(d) will be "margin stock" (within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System).
(h) All information, exhibits and reports furnished by or on behalf
of the Borrower or any of its Subsidiaries to the Administrative Agent and
the Lenders in connection with the negotiation of, or pursuant to the terms
of, this Agreement or any Note do not, considered as a whole, contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements made therein, in light of the
circumstances under which any such statements were made, not misleading (it
being understood that with respect to projections, such projections are
good faith estimates based on assumptions believed to be reasonable by the
Borrower at the time of delivery of such projections to the Administrative
Agent and the Lenders and that no assurances can be given that the results
set forth in the projections will actually be obtained).
(i) No ERISA Event has occurred or could reasonably be expected to
occur with respect to any Plan.
(j) To the extent an annual report (Form 5500 Series) is required to
be filed, Schedule B (Actuarial Information) to the most recent such annual
report for each Plan, copies of which have been filed with the Internal
Revenue Service and furnished to the Lenders, is complete and accurate and
fairly presents the funding status of such Plan; and since the date of such
Schedule B there has been no material adverse change in such funding
status.
(k) Neither the Borrower nor any ERISA Affiliate (i) has incurred or
could reasonably be expected to incur any Withdrawal Liability with respect
to any Multiemployer Plan or (ii) has been notified by the sponsor of a
Multiemployer Plan that such Multiemployer Plan is in reorganization or has
been terminated, within the meaning of Title IV of ERISA; and, to the
knowledge of the Borrower, no such Multiemployer Plan could reasonably be
expected to be in reorganization or to be terminated, within the meaning of
Title IV of ERISA.
(l) The operations and properties of the Borrower and its
Subsidiaries comply in all material respects with all applicable
Environmental Laws and Environmental Permits.
<PAGE>
42
(m) None of the properties owned or operated by the Borrower or its
Subsidiaries is listed or, to the knowledge of the Borrower, is proposed
for listing on the NPL or on the CERCLIS or any analogous foreign, state or
local list; there are no and never have been any underground or aboveground
storage tanks or any surface impoundments, septic tanks, pits, sumps or
lagoons in which Hazardous Materials are being or have been treated, stored
or disposed on any property owned or operated by the Borrower or any of its
Subsidiaries that, either individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
(n) Neither the Borrower nor its Subsidiaries is undertaking, and has
not completed, either individually or together with other potentially
responsible parties, any investigation, assessment or remedial or response
action relating to any actual or threatened release, discharge or disposal
of Hazardous Materials at any site, location or operation, either
voluntarily or pursuant to the order of any governmental or regulatory
authority or the requirements of any Environmental Law, that, either
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
(o) The proceeds of the Advances shall be available, and the Borrower
agrees that it shall use such proceeds, solely for general corporate
purposes (including, without limitation to, acquisitions of the shares of
capital stock of (or other ownership or profit interests in), or all or any
portion of the property and assets of any Person, and the refinancing of
other Indebtedness of the Borrower) not otherwise prohibited under the
terms of this Agreement.
(p) Neither the Borrower nor any of the Material Subsidiaries is an
"investment company", or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company" (each as defined in
the Investment Company Act of 1940, as amended). Neither the making of any
Advances nor the application of the proceeds or repayment thereof by the
Borrower, nor the consummation of the other transactions contemplated
hereby, will violate any provision of such Act or any rule, regulation or
order of the Securities and Exchange Commission thereunder.
(q) The Advances and all related obligations of the Borrower under
this Agreement and the Notes rank pari passu with all other unsecured
obligations of the Borrower that are not, by their terms, expressly
subordinate to such other obligations of the Borrower.
(r) The Borrower has (i) initiated a review and assessment of all
areas within its and each of its Subsidiaries' business and operations
(including, to the extent the Borrower deems appropriate, those affected by
suppliers, vendors and customers) that could be adversely affected by the
"Year 2000 Problem" (that is, the risk that computer applications used by
the Company or any of its Subsidiaries may be unable to recognize and
perform properly date-sensitive functions involving certain dates prior to
and any date after December 31, 1999), (ii) developed a plan for addressing
the Year 2000 Problem on a timely basis, and (iii) to date, has initiated
implementation of that plan. Based on the foregoing, the Borrower believes
that all computer applications that are material to its or any of its
Subsidiaries' business and operations are reasonably expected on a timely
basis to be able to perform properly date-sensitive functions for all dates
before and after January 1, 2000 (that is, be "Year 2000 compliant"),
except to the extent that a failure to do so could not reasonably be
expected to have Material Adverse Effect.
<PAGE>
43
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance shall
---------------------
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
-------------------------
Subsidiaries to comply, with all applicable laws, rules, regulations and
orders, such compliance to include, without limitation, compliance with
ERISA and Environmental Laws, except where the failure to so comply, either
individually or in the aggregate, could not reasonably be expected to have
a Material Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
---------------------
Subsidiaries to pay and discharge, before the same shall become delinquent,
(i) all taxes, assessments and governmental charges or levies imposed upon
it or upon its property and (ii) all lawful claims that, if unpaid, might
by law become a Lien upon its property; provided, however, that neither the
Borrower nor any of its Subsidiaries shall be required to pay or discharge
any such tax, assessment, charge, levy or claim that is being contested in
good faith and by proper proceedings and as to which appropriate reserves
are being maintained, unless and until any Lien resulting therefrom
attaches to its property and enforcement, collection, execution, levy or
foreclosure proceedings shall have been commenced with respect to one or
more such taxes, assessments, charges, levies or claims that, either
individually or in the aggregate, are material.
(c) Maintenance of Insurance. Maintain, and cause each of its
------------------------
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such risks
as the Borrower believes in good faith is usually carried by companies
engaged in similar businesses and owning similar properties in the same
general areas in which the Borrower or such Subsidiary operates.
(d) Preservation of Corporate Existence, Etc. Preserve and maintain,
----------------------------------------
and cause each of its Subsidiaries to preserve and maintain, its existence,
rights (charter and statutory) and franchises; provided, however, that the
Borrower and its Subsidiaries may consummate any merger or consolidation
otherwise permitted under Section 5.02(c); and provided further that
neither the Borrower nor any of its Subsidiaries shall be required to
preserve any right or franchise if management of the Borrower shall
determine in good faith that the preservation thereof is no longer
desirable in the conduct of the business or the continued operations of the
Borrower or such Subsidiary, as the case may be, and that the loss thereof
is not disadvantageous in any material respect to the Borrower and its
Subsidiaries taken as a whole, or to the Lenders.
(e) Visitation Rights. At any reasonable time and from time to time,
-----------------
upon notice to the Borrower, permit the Administrative Agent or any of the
Lenders or any agents or representatives thereof to examine and make copies
of and abstracts from the records and books of account, and visit the
properties, of the Borrower and/or any of its Subsidiaries, and to discuss
the affairs, finances and accounts of the Borrower and/or any of its
Subsidiaries with any of their officers or directors and with their
independent public accountants; provided, however, that so long as no
Default under Section 6.01(a) or 6.01(e) or Event of Default has occurred
and is
<PAGE>
44
continuing, the Borrower shall have the right to be present at all such
discussions and all such visits shall be at the Administrative Agent's or
the applicable Lender's expense.
(f) Keeping of Books. Keep, and cause each of its Subsidiaries to
----------------
keep, proper books of record and account, in which full and correct entries
shall be made of all financial transactions and the assets and business of
the Borrower and each such Subsidiary in accordance with generally accepted
accounting principles in effect from time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve, and cause
------------------------------
each of its Subsidiaries to maintain and preserve, all of its material
properties that are used or useful in the conduct of its business in good
working order and condition, ordinary wear and tear excepted.
(h) Transactions with Affiliates. Conduct, and cause each of its
----------------------------
Subsidiaries to conduct, all transactions otherwise permitted under this
Agreement with any of their Affiliates on terms that are fair and
reasonable and no less favorable to the Borrower or such Subsidiary than it
would obtain in a comparable arm's-length transaction with a Person not an
Affiliate, other than any transaction or series of related transactions
solely between or among the Borrower and one or more of its Wholly-Owned
Subsidiaries, or solely between or among one or more of the Wholly-Owned
Subsidiaries of the Borrower, in each case to the extent such transaction
or series of related transactions is not otherwise prohibited under the
terms of this Agreement.
(i) Subordination. As promptly as practicable and in any event on or
-------------
prior to September 1, 1998, cause each of the Domestic Subsidiaries to
enter into an agreement to subordinate all of the Indebtedness of the
Borrower owing to such Domestic Subsidiary from time to time to the
obligations of the Borrower under and in respect of this Agreement and the
Notes on the terms set forth in Exhibit E hereto.
(j) Reporting Requirements. Furnish to the Lenders:
----------------------
(i) as soon as available and in any event within 55 days after
the end of each of the first three quarters of each fiscal year of the
Borrower, a Consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such quarter and Consolidated statements
of income, retained earnings and cash flows of the Borrower and its
Subsidiaries for the period commencing at the end of the previous
fiscal year and ending with the end of such quarter, duly certified
(subject to year-end audit adjustments) by the Chief Financial Officer
or Treasurer of the Borrower as having been prepared in accordance
with generally accepted accounting principles;
(ii) as soon as available and in any event within 100 days after
the end of each fiscal year of the Borrower, a copy of the annual
audit report for such fiscal year for the Borrower and its
Subsidiaries, containing a Consolidated balance sheet of the Borrower
and its Subsidiaries as of the end of such fiscal year and
Consolidated statements of income, retained earnings and cash flows of
the Borrower and its Subsidiaries for such fiscal year, in each case
accompanied by an unqualified opinion or an opinion otherwise
reasonably acceptable to the Required Lenders by Arthur Andersen & Co.
or other independent public accountants of nationally recognized
standing and reasonably acceptable to the Administrative Agent;
<PAGE>
45
(iii) simultaneously with each delivery of the financial
statements referred to in subclauses (j)(i) and (j)(ii) of this
Section 5.01, a certificate of the Chief Financial Officer or the
Treasurer of the Borrower as to compliance with the terms of this
Agreement (including, without limitation, with respect to any
Investment made pursuant to Section 5.02(d)(vii)) and setting forth in
reasonable detail the calculations necessary to demonstrate compliance
with Sections 5.02(b)(iv), 5.02(d)(viii) and 5.03;
(iv) as soon as possible and in any event within five days after
any Responsible Officer knows or has reason to know of the occurrence
of each Default or Event of Default continuing on the date of such
statement, a statement of such Responsible Officer setting forth the
details of such Default or Event of Default and the action that the
applicable Borrower has taken and proposes to take with respect
thereto;
(v) promptly after the sending or filing thereof, copies of all
reports and registration statements, if any, that the Borrower or any
of its Subsidiaries files with the Securities and Exchange Commission
or any national securities exchange;
(vi) promptly after the commencement thereof, notice of all
actions, suits, investigations, litigations, arbitrations and
proceedings before any court, governmental agency or arbitrator
affecting the Borrower or any of its Subsidiaries that (A) either
individually or in the aggregate, could be reasonably expected to have
a Material Adverse Effect other than the Disclosed Litigation or (B)
purports to adversely affect the legality, validity or enforceability
of this Agreement or any Note or the consummation of the transactions
contemplated hereby; and
(vii) such other financial information respecting the Borrower
or any of its Subsidiaries as any Lender through the Administrative
Agent may from time to time reasonably request.
SECTION 5.02. Negative Covenants. So long as any Advance shall
------------------
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will not:
(a) Liens, Etc. Create or suffer to exist, or permit any of its
----------
Subsidiaries to create or suffer to exist, any Lien on or with respect to
any of its properties, whether now owned or hereafter acquired, or assign,
or permit any of Subsidiaries to assign, any right to receive income, other
than its
(i) Permitted Liens;
(ii) purchase money Liens upon or in any real property or
equipment acquired or held by the Borrower or any of its Subsidiaries
in the ordinary course of business to secure the purchase price of
such real property or equipment or to secure Indebtedness incurred
solely for the purpose of financing the acquisition of such real
property or equipment, or Liens existing on any such real property or
equipment at the time of its acquisition (other than any such Liens
created in contemplation of such acquisition that were not incurred to
finance the acquisition of such real property or equipment); provided,
however, that no such Lien shall extend to or cover any property or
assets of any character other than the real property or equipment
being acquired; and
<PAGE>
46
provided further that any Indebtedness secured by such Liens shall be
otherwise permitted under the terms of this Agreement;
(iii) Liens on property or assets of a Person (other than the
Borrower or any of its Subsidiaries) existing at the time such
property or asset is purchased or otherwise acquired by the Borrower
or its Subsidiaries; provided that such Liens were not created in
contemplation of such purchase or other acquisition and do not extend
to any property or assets other than those so purchased or otherwise
acquired;
(iv) Liens on property or assets of a Person (other than the
Borrower or any of its Subsidiaries) existing at the time such Person
is merged into or consolidated with the Borrower or any Subsidiary of
the Borrower or becomes a Subsidiary of the Borrower; provided that
such Liens were not created in contemplation of such merger,
consolidation or acquisition and do not extend to any property or
assets other than those of the Person so merged into or consolidated
with, or acquired by, the Borrower or such Subsidiary;
(v) Liens on accounts or notes receivable (whether such
accounts or notes receivable constitute accounts, instruments, chattel
paper or general intangibles) and other related assets, and sales of
or discounts on the foregoing, arising solely in connection with the
securitization thereof (whether in one transaction or in a series of
transactions); provided that the sale or other disposition of any such
accounts or notes receivable and related assets shall be on a "true
sale" basis;
(vi) Liens not otherwise permitted under clauses (i) through
(v) of this Section 5.02(a) securing Indebtedness in an aggregate
principal amount not to exceed $30,000,000 (or the Equivalent thereof
in one or more Foreign Currencies) at any time outstanding; and
(vii) the replacement, extension or renewal of any Lien
otherwise permitted under clauses (ii) through (vi) of this Section
5.02(a) upon or in the same property and assets theretofore subject
thereto; provided that no such extension, renewal or replacement shall
extend to or cover any property not theretofore subject to the Lien
being extended, renewed or replaced; and provided further that any
Indebtedness secured by such Liens shall otherwise be permitted under
the terms of this Agreement.
(b) Subsidiary Indebtedness. Permit any of its Subsidiaries to
-----------------------
create, incur, assume or suffer to exist, any Indebtedness other than:
(i) Indebtedness under this Agreement and the Notes;
(ii) Indebtedness incurred pursuant to the facilities existing
on the date of this Agreement and described on Schedule 5.02(b)
hereto;
(iii) Indebtedness owed to the Borrower or to a Domestic
Subsidiary; provided, however, that (A) any such Indebtedness shall be
incurred in the ordinary course of business and (B) on and after
September 1, 1998, any such Indebtedness of the
<PAGE>
47
Borrower shall be subordinated to all of the Borrower's Indebtedness
under this Agreement and the Notes on the same terms as those set
forth in Exhibit E hereto;
(iv) unsecured Indebtedness not otherwise permitted under this
Section 5.02(b) incurred in the ordinary course of business and in an
aggregate amount not to exceed at any time outstanding 20% of
Consolidated Net Worth;
(v) Indebtedness extending the maturity of, or refunding or
refinancing, in whole or in part, any Indebtedness incurred under
clause (ii), (iii) or (iv) of this Section 5.02(b); provided, however,
that the aggregate principal amount of such extended, refunding or
refinancing Indebtedness shall not be increased above the outstanding
principal amount thereof immediately prior to such extension,
refunding or refinancing; and
(vi) endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business.
(c) Mergers, Etc. Merge or consolidate with or into, or convey,
------------
transfer, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its property and assets
(whether now owned or hereafter acquired) to, any Person, or permit any of
its Subsidiaries to do so, except that:
(i) any Subsidiary may merge or consolidate with or into, or
convey, transfer, lease or otherwise dispose of all or substantially
all of its property and assets to, any other Wholly-Owned Subsidiary
of the Borrower;
(ii) any Subsidiary of the Borrower may merge or consolidate
with or into, or convey, transfer, lease or otherwise dispose of all
or substantially all of its property and assets to, the Borrower so
long as the Borrower is the surviving corporation;
(iii) subject to the requirements of Section 5.01(h), any
Subsidiary of the Borrower may merge or consolidate with or into, or
convey, transfer, lease or otherwise dispose of all or substantially
all of its property and assets to, any Subsidiary of the Borrower that
is not a Wholly-Owned Subsidiary of the Borrower;
(iv) the Borrower may merge with any other Person so long as
the Borrower is the surviving corporation; and
(v) subject to (A) the requirements of Section 5.01(h), (B) a
good faith determination by the Borrower that the continued existence
of such Subsidiary or that the ownership or maintenance of such
property and assets are no longer necessary or desirable in the
conduct of the business or the continued operations of the Borrower
and its Subsidiaries, taken as a whole and (C) compliance with the
covenants set forth in Section 5.03 on a pro forma basis as of the
last day of the Measurement Period most recently ended, any Subsidiary
of the Borrower may merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of all or substantially all of
its property and assets to one or more other Persons;
<PAGE>
48
provided that, in the cases of subclauses (iii), (iv) and (v) of this
Section 5.02(c), no Default shall have occurred and be continuing at the
time of such proposed transaction or shall occur as a result thereof.
(d) Investments in Other Persons. Make or hold, or permit any of its
----------------------------
Subsidiaries to make or hold, any Investment in any Person other than:
(i) Investments existing on the date of this Agreement;
(ii) Investments by the Borrower and its Subsidiaries in cash
and Marketable Securities;
(iii) Investments by the Borrower in one or more of its
Subsidiaries to the extent permitted under Section 5.02(b)(iii) or
5.02(b)(v);
(iv) Investments by any Subsidiary of the Borrower in the
Borrower or one or more other Subsidiaries of the Borrower;
(v) loans and advances to employees in the ordinary course of
the business of the Borrower and its Subsidiaries as presently
conducted;
(vi) Investments in account debtors received in connection with
the bankruptcy or reorganization, or in compromise or settlement of
delinquent obligations, of suppliers and customers arising in the
ordinary course of business and in accordance with applicable
collection and credit policies established by the Borrower or such
Subsidiary, as the case may be;
(vii) Investments not otherwise permitted under this Section
5.02(d); provided that in the case of any Investment made under this
clause (vii):
(A) such Investment shall result in (1) the acquisition of
all or substantially all of the assets of a Person or (2) the
acquisition or creation of a Subsidiary of the Borrower, or a
Person that will be or become part of a Subsidiary of the
Borrower, and such Subsidiary shall not have contingent
liabilities on the date of such Investment which could reasonably
be expected to be material to the Borrower and its Subsidiaries,
taken as a whole;
(B) any Subsidiary of the Borrower acquired or created as
a result of or in connection with such Investment shall be
engaged in, and any business acquired or invested in shall be,
substantially the same line of business as the business of the
Borrower and its Subsidiaries conducted at the time of such
Investment in the ordinary course, or a line of business directly
related thereto;
(C) any acquisition of shares of capital stock of (or
other ownership or profit interests in) a Person by the Borrower
or any of its Subsidiaries shall be effected as a Friendly
Acquisition; and
(D) immediately before and after giving effect to each
such Investment, no Default shall have occurred and be
continuing; and
<PAGE>
49
(viii) Investments not otherwise permitted under this Section
5.02(d) not to exceed in any fiscal year 30% of Consolidated Net Worth
determined as of the end of the immediately preceding fiscal year;
provided that in the case of any Investment made under this clause
(viii):
(A) such Investment shall not include or result in
contingent liabilities which could reasonably be expected to be
material to the Borrower and its Subsidiaries, taken as a whole;
(B) any business acquired or invested in with (or in
connection with) such Investment shall be in substantially the
same line of business as the business of the Borrower and its
Subsidiaries conducted at the time of such Investment in the
ordinary course, or a line of business directly related thereto;
(C) any acquisition of shares of capital stock of (or
other ownership or profit interests in) a Person by the Borrower
or any of its Subsidiaries shall be effected as a Friendly
Acquisition; and
(D) immediately before and after giving effect to each
such Investment, no Default shall have occurred and be
continuing.
(e) Change in Nature of Business. Make, or permit any of its
----------------------------
Subsidiaries to make, any material change in the nature of its business as
carried on at the date of this Agreement.
(f) Accounting Changes. Make or permit, or permit any of its
------------------
Subsidiaries to make or permit, any changes in its accounting policies or
financial reporting practices (including, without limitation, any changes
in the fiscal year of the Borrower or any of its Subsidiaries), except as
required by generally accepted accounting principles in effect from time to
time.
SECTION 5.03. Financial Covenants. So long as any Advance shall
-------------------
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will:
(a) Consolidated Net Worth. Maintain Consolidated Net Worth at all
----------------------
times of not less than $175,000,000.
(b) Leverage Ratio. Maintain a Leverage Ratio as of the last day of
--------------
each Measurement Period of not more than 3.50:1.
(c) Fixed Charge Coverage Ratio. Maintain a Fixed Charge Coverage
---------------------------
Ratio as of the last day of each Measurement Period of not less than
1.50:1.
<PAGE>
50
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
-----------------
("EVENTS OF DEFAULT") shall occur and be continuing:
(a) The Borrower shall fail (i) to pay any principal of any Advance
when the same becomes due and payable or (ii) to pay any interest on any
Advance or to make any payment of fees or other amounts payable under this
Agreement or any Note, in each case under this clause (ii) within three
Business Days after the same becomes due and payable; or
(b) Any representation or warranty made by the Borrower herein or by
the Borrower (or any of its officers) in connection with this Agreement
shall prove to have been incorrect in any material respect when made; or
(c) The Borrower shall fail to perform or observe (i) any term,
covenant or agreement contained in Section 2.19, 5.01(h), 5.01(i) or
5.01(j), 5.02 or 5.03, (ii) any term, covenant or agreement contained in
Section 5.01(a), (b) or (d) if such failure shall remain unremedied for at
least ten days or (iii) any other term, covenant or agreement contained in
this Agreement on its part to be performed or observed if such failure
shall remain unremedied for at least 30 days after written notice thereof
shall have been given to the Borrower by the Administrative Agent or any
Lender; or
(d) The Borrower or any of its Material Subsidiaries shall fail to
pay any principal of or premium or interest on any Indebtedness that is
outstanding in a principal amount or, in the case of any Hedge Agreement,
having a maximum Agreement Value, of at least $10,000,000 (or the
Equivalent thereof in one or more Foreign Currencies) in the aggregate (but
excluding Indebtedness outstanding hereunder) of the Borrower or such
Subsidiary, as the case may be, when the same becomes due and payable
(whether by scheduled maturity, required prepayment, acceleration, demand
or otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to such
Indebtedness; or any other event shall occur or condition shall exist under
any agreement or instrument relating to any such Indebtedness and shall
continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such
Indebtedness; or any such Indebtedness shall be declared to be due and
payable, or required to be prepaid or redeemed (other than by a regularly
scheduled required prepayment or redemption), purchased or defeased, or an
offer to prepay, redeem, purchase or defease such Indebtedness shall be
required to be made, in each case prior to the stated maturity thereof; or
(e) The Borrower or any of its Material Subsidiaries shall admit in
writing its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against the Borrower or any of its Material Subsidiaries
seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of
an order for relief or the appointment of a receiver, trustee, custodian or
other similar
<PAGE>
51
official for it or for any substantial part of its property and, in the
case of any such proceeding instituted against it (but not instituted by
it), either such proceeding shall remain undismissed or unstayed for a
period of at least 60 days, or any of the actions sought in such proceeding
(including, without limitation, the entry of an order for relief against,
or the appointment of a receiver, trustee, custodian or other similar
official for, it or for any substantial part of its property) shall occur;
or the Borrower or any of its Material Subsidiaries shall take any action
to authorize any of the actions set forth above in this Section 6.01(e); or
(f) One or more judgments or orders for the payment of money in
excess of $10,000,000 (or the Equivalent thereof in one or more Foreign
Currencies) shall be rendered against the Borrower or any of its
Subsidiaries and shall remain unsatisfied and either (i) enforcement
proceedings shall have been commenced by any creditor upon such judgment or
order or (ii) there shall be any period of at least ten consecutive days
during which a stay of enforcement of such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect; provided, however,
that any such judgment or order shall not be an Event of Default under this
Section 6.01(f) if and for so long as (i) the amount of such judgment or
order is covered by a valid and binding policy of insurance between the
defendant and the insurer covering payment thereof and (ii) such insurer
has been notified of, and has not disputed the claim made for payment of,
the amount of such judgment or order; or
(g) (i) Any Person or two or more Persons acting in concert shall
have acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of
1934, as amended), directly or indirectly, of Voting Stock of the Borrower
(or other securities convertible into or exchangeable for such Voting
Stock) representing 35% or more of the combined voting power of all Voting
Stock of the Borrower (on a fully diluted basis); or (ii) during any period
of up to 12 consecutive months, whether commencing before or after the date
of this Agreement, individuals who at the beginning of such 12-month period
were Continuing Directors shall cease for any reason to constitute a
majority of the board of directors of the Borrower; or (iii) any Person or
two or more Persons acting in concert shall have acquired by contract or
otherwise, or shall have entered into a contract or arrangement that, upon
consummation, will result in its or their acquisition of the power to
exercise, directly or indirectly, a controlling influence over the
management or policies of the Borrower; or
(h) The Borrower and/or one or more ERISA Affiliates shall incur or
could reasonably be expected to incur liability in excess of $10,000,000
(or the Equivalent thereof in one or more Foreign Currencies) in the
aggregate as a result of one or more of the following: (i) the occurrence
of any ERISA Event; (ii) the partial or complete withdrawal of the Borrower
or any ERISA Affiliate from a Multiemployer Plan; or (iii) the
reorganization or termination of a Multiemployer Plan;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Commitments of the Lenders and the obligation of each Lender to make
Advances to be terminated, whereupon the same shall forthwith terminate, and
(ii) shall at the request, or may with the consent, of the Required Lenders, by
notice to the Borrower, declare the Notes, all interest thereon and all other
amounts payable under this Agreement to be forthwith due and payable, whereupon
the Notes, all such interest and all such amounts shall become and be forthwith
due and payable, without presentment, demand, protest or further notice of any
kind, all
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52
of which are hereby expressly waived by the Borrower; provided, however, that in
the event of an actual or deemed entry of an order for relief with respect to
the Borrower under the Federal Bankruptcy Code, (A) the Commitments of the
Lenders and the obligation of each Lender to make Advances shall automatically
be terminated and (B) the Notes, all such interest and all such amounts shall
automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
the Borrower.
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby appoints
------------------------
and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers and discretion under this Agreement as are
delegated to the Administrative Agent by the terms hereof, together with such
powers and discretion as are reasonably incidental thereto. As to any matters
not expressly provided for under this Agreement (including, without limitation,
enforcement or collection of the Notes), the Administrative Agent shall not be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding upon all Lenders and all holders of Notes;
provided, however, that the Administrative Agent shall not be required to take
any action (i) that exposes the Administrative Agent to personal liability or
that is contrary to this Agreement or applicable law or (ii) as to which the
Administrative Agent has not received adequate security or indemnity (whether
pursuant to Section 7.05 or otherwise). If the security or indemnity furnished
to the Administrative Agent for any purpose under or in respect of this
Agreement shall, in the good faith opinion of the Administrative Agent, be
insufficient or become impaired, then the Administrative Agent may require
additional security or indemnity and cease, or not commence, to follow the
directions or take the actions indemnified against until such additional
security or indemnity is furnished. The Administrative Agent agrees to give to
each Lender prompt notice of each notice given to it by the Borrower pursuant to
the terms of this Agreement.
SECTION 7.02. Administrative Agent's Reliance, Etc. Neither the
------------------------------------
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with this Agreement, except for its or their own gross
negligence or willful misconduct as determined in a final, nonappealable
judgment by a court of competent jurisdiction. Without limitation of the
generality of the foregoing, the Administrative Agent:
(i) may treat the payee of any Note as the holder thereof until the
Administrative Agent receives and accepts an Assignment and Acceptance
entered into by the Lender that is the payee of such Note or an Assumption
Agreement entered into by an Assuming Lender, as the case may be, as
assignor, and an Eligible Assignee, as assignee, as provided in Section
8.07 or 2.16;
(ii) may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel, accountants or
experts;
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53
(iii) makes no warranty or representation to any Lender and shall not
be responsible to any Lender for any statements, warranties or
representations (whether written or oral) made in or in connection with
this Agreement or any Note;
(iv) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of
this Agreement or any Note on the part of the Borrower or to inspect the
property and assets (including the books and records) of the Borrower;
(v) shall not be responsible to any Lender for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of
this Agreement or any Note or any other instrument or document furnished
pursuant hereto; and
(vi) shall incur no liability under or in respect of this Agreement
by acting upon any notice, consent, certificate or other instrument or
writing (which may be by telecopier, telegram or telex) believed by it to
be genuine and signed or sent by the proper party or parties.
SECTION 7.03. Citibank and Affiliates. With respect to its
-----------------------
Commitment, the Advances made by it and the Note or Notes issued to it, Citibank
shall have the same rights and powers under this Agreement as any other Lender
and may exercise the same as though it were not the Administrative Agent; and
the term "Lender" or "Lenders" shall, unless otherwise expressly indicated,
include Citibank in its individual capacity. Citibank and its affiliates may
accept deposits from, lend money to, act as trustee under indentures of, accept
investment banking engagements from and generally engage in any kind of business
with, the Borrower, any of its Subsidiaries and any Person who may do business
with or own securities of the Borrower or any such Subsidiary, all as if
Citibank were not the Administrative Agent and without any duty to account
therefor to the other Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges that
----------------------
it has, independently and without reliance upon the Administrative Agent or any
other Lender and based on the financial statements referred to in Section
4.01(e) and such other documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon
the Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement.
SECTION 7.05. Indemnification. The Lenders agree to indemnify the
---------------
Administrative Agent (to the extent not reimbursed by the Borrower), ratably
according to the respective principal amounts of the Revolving Credit Notes
(determined in the case of any Revolving Credit Advances denominated in a
Foreign Currency and evidenced thereby by reference to the Equivalent thereof in
US Dollars at such time) then held by each of them (or, if no Revolving Credit
Notes are at the time outstanding or if any Revolving Credit Notes are held by
Persons that are not Lenders, ratably according to the respective amounts of
their Commitments at such time), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses and disbursements of any kind or nature whatsoever that may be imposed
on, incurred by, or asserted against the Administrative Agent in any way
relating to or arising out of this Agreement or any Note or any action taken or
omitted by the Administrative Agent under this Agreement (collectively, the
"LENDER INDEMNIFIED COSTS"); provided that no Lender shall be liable for any
portion of the Lender Indemnified Costs resulting from the Administrative
Agent's gross negligence or willful misconduct as determined in
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54
a final, nonappealable judgment by a court of competent jurisdiction. In the
case of any claim, investigation, litigation or proceeding giving rise to any
Lender Indemnified Costs, the indemnification provided by the Lenders under this
Section 7.05 shall apply whether or not any such claim, investigation,
litigation or proceeding is brought by the Administrative Agent, any of the
Lenders or a third party. Without limitation of the foregoing, each Lender
agrees to reimburse the Administrative Agent promptly, upon demand, for its
ratable share of any out-of-pocket costs and expenses (including counsel fees)
incurred by the Administrative Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, to the
extent that the Administrative Agent is not reimbursed for such expenses by the
Borrower. The failure of any of the Lenders to reimburse the Administrative
Agent promptly upon demand for its ratable share of any amount required to be
paid by the Lenders to the Administrative Agent as provided in this Section 7.05
shall not relieve any of the other Lenders of its obligation hereunder to
reimburse the Administrative Agent for its ratable share of such amount, but
none of the Lenders shall be responsible for the failure of any of the other
Lenders to reimburse the Administrative Agent for such other Lender's ratable
share of such amount. Without prejudice to the survival of any other agreement
of any of the Lenders hereunder, the agreement and obligations of each of the
Lenders contained in this Section 7.05 shall survive the payment in full of all
principal, interest and other amounts payable under this Agreement and the
Notes.
SECTION 7.06. Successor Administrative Agent. The Administrative
------------------------------
Agent may resign at any time by giving written notice thereof to the Lenders and
the Borrower and may be removed at any time with or without cause by the
Required Lenders. Upon any such resignation or removal, the Required Lenders
shall have the right to appoint a successor Administrative Agent; provided that,
so long as no Default shall have occurred and be continuing, the Borrower shall
have the right to propose a successor Administrative Agent to the Lenders and
shall have the right to consent to any such successor Administrative Agent, such
consent not to be unreasonably withheld and to be deemed to have been given if
the Borrower does not object to the proposed successor Administrative Agent
within five Business Days of notice thereof. If no successor Administrative
Agent shall have been so appointed by the Required Lenders (and, if required,
consented to by the Borrower), and shall have accepted such appointment, within
30 days after the retiring Administrative Agent's giving of notice of
resignation or the Required Lenders' removal of the retiring Administrative
Agent, then the retiring Administrative Agent may, on behalf of the Lenders,
appoint a successor Administrative Agent, which shall be a commercial bank
organized under the laws of the United States of America or of any state thereof
and having a combined capital and surplus of at least $500,000,000. If within
45 days after written notice is given of the retiring Administrative Agent's
resignation or removal under this Section 7.06 no successor Administrative Agent
shall have been appointed and shall have accepted such appointment, then on such
45th day (a) the retiring Administrative Agent's resignation or removal shall
become effective, (b) the retiring Administrative Agent shall thereupon be
discharged from its duties and obligations under and in respect of this
Agreement and (c) the Required Lenders shall thereafter perform all duties and
obligations of the retiring Administrative Agent under and in respect of this
Agreement until such time, if any, as the Required Lenders appoint a successor
Administrative Agent as provided above in this Section 7.06. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, discretion, privileges
and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under this Agreement.
After any retiring Administrative Agent's resignation or removal hereunder as
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55
Administrative Agent, the provisions of this Article VII shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was the
Administrative Agent.
SECTION 7.07. The Sub-Agent. The Sub-Agent has been designated under
-------------
this Agreement to carry out the duties of the Administrative Agent related to
Revolving Credit Advances denominated in a Foreign Currency. Each Lender hereby
appoints and authorizes the Sub-Agent to take such action as agent on its behalf
as is necessary or desirable to carry out such duties and to exercise such
powers and discretion under this Agreement as are delegated to the Sub-Agent by
the terms hereof, together with such powers and discretion as are reasonably
incidental thereto. In that connection, the Sub-Agent shall be entitled to all
of the benefits of the Administrative Agent under this Agreement (including,
without limitation, all of the provisions of this Article VII) as if they were
set forth in full herein with respect to the Sub-Agent.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
---------------
provision of this Agreement or the Revolving Credit Notes, nor consent to any
departure by the Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no amendment, waiver
or consent shall, unless in writing and signed by all the Lenders, do any of the
following at any time:
(a) waive any of the conditions specified in Section 3.01 or, with
respect to all Increasing Lenders, as applicable, and all Assuming Lenders,
Section 3.04;
(b) increase the Commitments of the Lenders (other than as elected by
any Lender as provided in Section 2.16) or subject the Lenders to any
additional obligations;
(c) reduce the principal of, or stated rate of interest on, the
Revolving Credit Notes, the stated rate at which any fees hereunder are
calculated or any other amounts payable hereunder;
(d) postpone any date fixed for any payment of principal of, or
interest on, the Revolving Credit Notes or any fees or other amounts
payable hereunder;
(e) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Revolving Credit Notes, or the number of
Lenders, that shall be required for the Lenders or any of them to take any
action hereunder; or
(f) amend this Section 8.01;
and provided further that no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Lenders
required above to take such action, affect the rights or duties of the
Administrative Agent under this Agreement or any Note.
<PAGE>
56
SECTION 8.02. Notices, Etc. (a) All notices and other
------------
communications provided for hereunder shall be in writing (including telecopier,
telegraphic or telex communication) and mailed, telecopied, telegraphed, telexed
or delivered, if to the Borrower, at its address at 101 East Erie Street,
Chicago, Illinois 60611-2897 (Telecopier No. (312) 425-6350), Attention:
Treasurer, with copies thereof to (i) the Assistant General Counsel of the
Borrower at the address of the Borrower specified above and (ii) Sidley &
Austin, One First National Plaza, Chicago, Illinois 60603 (Telecopier No. (312)
853-7036), Attention: Jeffrey S. Rothstein, Esq.; if to any Initial Lender, at
its Base Rate Lending Office specified opposite its name on Schedule I hereto;
if to any other Lender, at its Base Rate Lending Office specified in the
Assignment and Acceptance or the Assumption Agreement, as the case may be,
pursuant to which it became a Lender; and if to the Administrative Agent, at its
address c/o Citicorp Securities, Inc., 200 South Wacker Drive, 31/st/ Floor,
Chicago, Illinois 60606 (Telecopier No. (312) 993-1050), Attention: Mr. H. Peter
Koesler; or, as to the Borrower or the Administrative Agent, at such other
address as shall be designated by such party in a written notice to the other
parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Borrower and the
Administrative Agent. All such notices and communications shall, when mailed,
telecopied, telegraphed or telexed, be effective when deposited in the mails,
telecopied, delivered to the telegraph company or confirmed by telex answerback,
respectively, except that notices and communications to the Administrative Agent
pursuant to Article II, III or VII shall not be effective until received by the
Administrative Agent. Delivery by telecopier of an executed counterpart of any
amendment or waiver of any provision of this Agreement or the Notes or of any
Exhibit hereto to be executed and delivered hereunder shall be effective as
delivery of a manually executed counterpart thereof.
(b) If any notice required under this Agreement is permitted to be
made, and is made, by telephone, actions taken or omitted to be taken in
reliance thereon by the Administrative Agent or any Lender shall be binding upon
the Borrower notwithstanding any inconsistency between the notice provided by
telephone and any subsequent writing in confirmation thereof provided to the
Administrative Agent or such Lender; provided that any such action taken or
omitted to be taken by the Administrative Agent or such Lender shall have been
in good faith and in accordance with the terms of this Agreement.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any
-------------------
Lender or the Administrative Agent to exercise, and no delay in exercising, any
right hereunder or under any Note shall operate as a waiver thereof or consent
thereto; nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by applicable law.
SECTION 8.04. Costs and Expenses. (a) The Borrower hereby agrees to
------------------
pay, or to reimburse the Administrative Agent from time to time, upon demand for
all reasonable out-of-pocket costs and expenses of the Administrative Agent in
connection with the preparation, execution, delivery, administration,
modification and amendment of this Agreement, the Notes and the other documents
to be delivered hereunder, including, without limitation, (i) all due diligence,
syndication (including printing, distribution and bank meetings),
transportation, computer, duplication, and messenger costs and audit expenses
and (ii) the reasonable and documented fees and expenses of counsel for the
Administrative Agent with respect thereto and with respect to advising the
Administrative Agent as to its respective rights and responsibilities under this
Agreement, the Notes and the other documents to be delivered hereunder. The
Borrower further hereby agrees to pay, or to reimburse the Administrative Agent
and the Lenders from time to time, upon demand for all reasonable out-of-pocket
costs and expenses of the Administrative Agent and the Lenders, if any
(including, without limitation, reasonable and documented
<PAGE>
57
counsel fees and expenses), in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement, the Notes and
the other documents to be delivered hereunder, including, without limitation,
reasonable fees and expenses of counsel for the Administrative Agent and each
Lender in connection with the enforcement of rights under this Section 8.04(a);
provided that the Borrower shall only be obligated to pay the fees and expenses
of one counsel for the Administrative Agent and the Lenders, which shall be
counsel for the Administrative Agent, unless any Lender shall reasonably
determine that a conflict of interest exists such that counsel for the
Administrative Agent is precluded by law or by standards of conduct from
representing the Administrative Agent and the Lenders as a group, in which case
the Borrower hereby agrees to pay, or to reimburse the Administrative Agent and
the Lenders from time to time, upon demand for all reasonable and documented
fees and expenses of the minimum number of counsel necessary in the reasonable
judgment of the Lenders to provide the Administrative Agent and each Lender with
appropriate legal representation in connection with the enforcement of their
respective rights under this Agreement, the Notes and the other documents to be
delivered hereunder.
(b) The Borrower hereby agrees to indemnify and hold harmless the
Administrative Agent and each Lender and each of their affiliates and their
officers, directors, employees, agents and advisors (each, an "INDEMNIFIED
PARTY") from and against any and all claims, damages, losses, liabilities and
expenses (including, without limitation, reasonable fees and expenses of
counsel) that may be incurred by or asserted or awarded against any Indemnified
Party, in each case arising out of or in connection with or by reason of
(including, without limitation, in connection with any investigation, litigation
or proceeding or preparation of a defense in connection therewith) (i) the
Notes, this Agreement, any of the transactions contemplated hereby or the actual
or proposed use of the proceeds of the Advances or (ii) the actual or alleged
presence of Hazardous Materials on any property of the Borrower or any of its
Subsidiaries or any Environmental Action relating in any way to the Borrower or
any of its Subsidiaries, except to the extent such claim, damage, loss,
liability or expense is found in a final, nonappealable judgment by a court of
competent jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct; provided, however, that, notwithstanding the
foregoing provisions of this Section 8.04(b), the Borrower shall not be
obligated to indemnify any of the Indemnified Parties for any claim, damage,
loss, liability or expense arising solely from (i) a dispute between two or more
Lenders or (ii) a claim by any Lender against the Borrower that is found in a
final nonappealable judgment by a court of competent jurisdiction in favor of
the Borrower (it being understood and agreed that this clause (ii) shall not
affect or limit any amount the Borrower may owe to any Lender as a result of any
such claim pursuant to Section 8.04(a)). In the case of an investigation,
litigation or other proceeding to which the indemnity in this Section 8.04(b)
applies, such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by the Borrower, its directors, shareholders
or creditors or an Indemnified Party or any Indemnified Party is otherwise a
party thereto and whether or not any of the transactions contemplated hereby are
consummated. The Borrower hereby also agrees not to assert any claim against the
Administrative Agent, any Lender, any of their Affiliates, or any of their
respective officers, directors, employees, agents and advisors, on any theory of
liability, for special, indirect, consequential or punitive damages arising out
of or otherwise relating to this Agreement, the Notes, any of the transactions
contemplated hereby or the actual or proposed use of the proceeds of the
Advances.
(c) If any payment of principal of, or Conversion of, any
Eurocurrency Rate Advance is made by the Borrower to or for the account of a
Lender other than on the last day of the Interest Period for such Advance, as a
result of a payment or Conversion pursuant to Section 2.08(d) or 2.08(e), 2.09,
2.10 or 2.12, acceleration of the maturity of the Notes pursuant to Section 6.01
or for any
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58
other reason, or by an Eligible Assignee to any Lender other than on the last
day of the Interest Period for such Advance upon an assignment of the rights and
obligations of such Lender under this Agreement pursuant to Section 8.07 as a
result of a demand by the Borrower pursuant to Section 8.07(a), or if the
Borrower fails to make any payment or prepayment of an Advance for which a
notice of prepayment has been given or that is otherwise required to be made,
whether pursuant to Section 2.06, 2.10 or 6.01 or otherwise, the Borrower agrees
to pay, upon demand by such Lender (with a copy of such demand to the
Administrative Agent), to the Administrative Agent for the account of such
Lender any amounts required to compensate such Lender for any additional losses,
costs or expenses (excluding any loss of anticipated profits) that it may
reasonably incur as a result of such payment or Conversion, including, without
limitation, any loss, cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender to fund or
maintain such Advance.
(d) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
Sections 2.11 and 2.14 and in this Section 8.04 shall survive the payment in
full of principal, interest and all other amounts payable hereunder and under
the Notes.
SECTION 8.05. Right of Setoff. Upon (i) the occurrence and during
---------------
the continuance of any Event of Default and (ii) the making of the request or
the granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
applicable law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by such Lender or such Affiliate to or for the credit or the
account of the Borrower against any and all of the obligations of the Borrower
now or hereafter existing under this Agreement and the Note or Notes held by
such Lender, whether or not such Lender shall have made any demand under this
Agreement or any such Note and although such obligations may be unmatured. Each
Lender agrees promptly to notify the Borrower after any such setoff and
application is made by such Lender; provided that the failure to give such
notice shall not affect the validity of such setoff and application. The rights
of each Lender and its Affiliates under this Section 8.05 are in addition to
other rights and remedies (including, without limitation, other rights of
setoff) that such Lender and its Affiliates may have. Nothing in this Section
8.05 shall be construed to grant a right of setoff against any Person other than
the Borrower.
SECTION 8.06. Binding Effect. This Agreement shall become effective
--------------
(other than Sections 2.01 and 2.03, which shall only become effective upon
satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by the Borrower and the Administrative Agent and when
the Administrative Agent shall have been notified by each Initial Lender that
such Initial Lender has executed it and, thereafter, shall be binding upon and
inure to the benefit of, and be enforceable by, the Borrower, the Administrative
Agent and each Lender and their respective successors and assigns, except that
the Borrower shall not have the right to assign its rights hereunder or any
interest herein without the prior written consent of the Lenders.
SECTION 8.07. Assignments and Participations. (a) Each Lender may,
------------------------------
and, if demanded by the Borrower (following (i) a demand by such Lender for the
payment of additional compensation pursuant to Section 2.11 or 2.14 or (ii) an
assertion by such Lender pursuant to Section 2.08(b) or 2.12 that it is
impracticable or unlawful for such Lender to make Eurocurrency Rate Advances)
upon at least five Business Days' notice to such Lender and the Administrative
Agent, each
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59
Lender will, assign to one or more Persons all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment, the Revolving Credit Advances owing to it and the
Revolving Credit Note or Notes held by it); provided, however, that:
(A) each such assignment shall be of a constant, and not a varying,
percentage of all rights and obligations under this Agreement (other than
any right to make Competitive Bid Advances, Competitive Bid Advances owing
to it and Competitive Bid Notes);
(B) except in the case of an assignment to a Person that, immediately
prior to such assignment, was a Lender or an assignment of all of a
Lender's rights and obligations under this Agreement, the amount of the
Commitment of the assigning Lender being assigned pursuant to each such
assignment, when aggregated with the amount of the commitment of such
Person to lend under the 364-Day Credit Agreement that is being
concurrently assigned in accordance with subclause (C) of this Section
8.07(a) (in each case determined as of the date of the Assignment and
Acceptance with respect to such assignment), shall in no event be less than
$10,000,000 or an integral multiple of $1,000,000 in excess thereof;
(C) the Lender assignor shall concurrently effect a ratable
assignment of its rights and obligations under the 364-Day Credit Agreement
to the same Person;
(D) each such assignment shall be to an Eligible Assignee;
(E) each such assignment made as a result of a demand by the Borrower
pursuant to this Section 8.07(a) shall be arranged by the Borrower with the
approval of the Administrative Agent, which approval shall not be
unreasonably withheld or delayed, and shall be either an assignment of all
of the rights and obligations of the assigning Lender under this Agreement
or an assignment of a portion of such rights and obligations made
concurrently with another such assignment or other such assignments that,
in the aggregate, cover all of the rights and obligations of the assigning
Lender under this Agreement;
(F) no Lender shall be obligated to make any such assignment as a
result of a demand by the Borrower pursuant to this Section 8.07(a) unless
and until such Lender shall have received one or more payments from one or
more Eligible Assignees in an aggregate amount at least equal to the
aggregate outstanding principal amount of the Advances owing to such
Lender, together with accrued interest thereon to the date of payment of
such principal amount, and from the Borrower or one or more Eligible
Assignees in an aggregate amount equal to all other amounts payable to such
Lender under this Agreement and the Notes (including, without limitation,
any amounts owing under Sections 2.07(c), 2.11 and 2.14); and
(G) the parties to each such assignment (except in the case of a
demand by the Borrower pursuant to this Section 8.07(a), other than the
Borrower) shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance,
together with any Revolving Credit Note subject to such assignment, and a
processing and recordation fee of $3,000.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, (1) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
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60
Acceptance, have the rights and obligations of a Lender hereunder and (2) the
Lender assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights (other than its rights under Sections 2.07(c), 2.11, 2.14
and 8.04 to the extent any claim thereunder relates to an event arising prior to
such assignment) and be released from its obligations (other than its
obligations under Section 7.05 to the extent that any claim thereunder relates
to an event arising prior to such assignment) under this Agreement (and, in the
case of an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows:
(i) other than as provided in such Assignment and Acceptance, such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or any Note,
or any other instrument or document furnished pursuant hereto, or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any Note, or any other instrument or document
furnished pursuant hereto;
(ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any Note, or any other instrument or
document furnished pursuant hereto;
(iii) such assignee confirms that it has received a copy of this
Agreement, together with copies of the financial statements referred to in
Section 4.01(e) and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance;
(iv) such assignee agrees that it will, independently and without
reliance upon the Administrative Agent, such assigning Lender or any other
Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement;
(v) such assignee confirms that it is an Eligible Assignee;
(vi) such assignee appoints and authorizes the Administrative Agent
and the Sub-Agent to take such action as agent on its behalf and to
exercise such powers and discretion under this Agreement as are delegated
to the Administrative Agent and the Sub-Agent, respectively, by the terms
hereof, together with such powers and discretion as are reasonably
incidental thereto; and
(vii) such assignee agrees that it will perform in accordance with
their terms all of the obligations that by the terms of this Agreement are
required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Revolving Credit
<PAGE>
61
Note or Notes subject to such assignment, the Administrative Agent shall, if
such Assignment and Acceptance has been completed and is in substantially the
form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record
the information contained therein in the Register and (iii) give prompt notice
thereof to the Borrower. Within ten Business Days after its receipt of such
notice by the Borrower, at its own expense, shall execute and deliver to the
Administrative Agent in exchange for the surrendered Revolving Credit Note of
the Borrower a new Revolving Credit Note payable to the order of such Eligible
Assignee in an amount equal to the Commitment assumed by it pursuant to such
Assignment and Acceptance and, if the assigning Lender has retained a Commitment
hereunder, a new Revolving Credit Note payable to the order of the assigning
Lender in an amount equal to the Commitment retained by it hereunder. Such new
Revolving Credit Note or Notes shall be in an aggregate principal amount equal
to the aggregate principal amount of such surrendered Revolving Credit Note or
Notes, shall be dated the effective date of such Assignment and Acceptance and
shall otherwise be in substantially the form of Exhibit A-1 hereto.
(d) The Administrative Agent shall maintain at its address referred
to in Section 8.02(a) a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Lenders and the Commitment of, and principal amount of the Advances owing
to, each Lender from time to time (the "REGISTER"). The entries in the Register
shall be conclusive and binding for all purposes, absent demonstrable error, and
the Borrower, the Administrative Agent and the Lenders may treat each Person
whose name is recorded in the Register as a Lender hereunder for all purposes of
this Agreement. The Register shall be available for inspection by the Borrower
or any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Each Lender may sell participations to one or more banks or
other entities (other than the Borrower or any of its Affiliates) in or to all
or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment, the Advances owing to it
and the Note or Notes held by it); provided, however, that:
(i) such Lender's obligations under this Agreement (including,
without limitation, its Commitment) shall remain unchanged;
(ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations;
(iii) such Lender shall remain the holder of any such Note for all
purposes of this Agreement;
(iv) the Borrower, the Administrative Agent, the Sub-Agent and the
other Lenders shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under this
Agreement; and
(v) no participant under any such participation shall have any
right to approve any amendment or waiver of any provision of this Agreement
or any Note, or consent to any departure by the Borrower herefrom or
therefrom, except to the extent that such amendment, waiver or consent
would reduce the principal of, or stated rate of interest on, the Notes or
the stated rate at which any fees or any other amounts payable hereunder
are calculated, in each case to the extent subject to such participation,
or postpone any date fixed for any payment of
<PAGE>
62
principal of, or interest on, the Notes or any fees or any other amounts
payable hereunder, in each case to the extent subject to such
participation.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.07, disclose to any assignee or participant or proposed assignee or
participant any information relating to the Borrower or any of its Subsidiaries
furnished to such Lender by or on behalf of the Borrower; provided that, prior
to any such disclosure, the assignee or participant or proposed assignee or
participant shall agree to preserve the confidentiality of such Confidential
Information received by it from such Lender in accordance with Section 8.08.
(g) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and the Note or Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
SECTION 8.08. Confidentiality. Neither the Administrative Agent nor
---------------
any Lender shall disclose any Confidential Information to any Person without the
prior consent of the Borrower, other than (a) to the Administrative Agent's or
such Lender's Affiliates and their officers, directors, employees, agents and
advisors and, as contemplated by Section 8.07(f), to actual or prospective
assignees and participants, and then only on a confidential basis, (b) as
required by any law, rule or regulation or judicial or legal process, provided
that solely with respect to this clause (b) the Administrative Agent or such
Lender shall notify the Borrower of the requirement or request that it disclose
any such Confidential Information prior to doing so unless such notification is
prohibited by any applicable law or judicial or legal process, (c) to the
Administrative Agent and/or other Lenders and (d) as requested or required by
any state, federal or foreign authority or examiner regulating banks or banking.
SECTION 8.09. Governing Law. This Agreement and the Notes shall be
-------------
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 8.10. Execution in Counterparts. This Agreement may be
-------------------------
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.11. Judgment. (a) Rate of Exchange. If, for the purpose
-------- ----------------
of obtaining judgment in any court, it is necessary to convert a sum due
hereunder or under any Note or Notes in another currency into US Dollars or into
a Foreign Currency, as the case may be, the parties hereto agree, to the fullest
extent that they may effectively do so, that the rate of exchange used shall be
that at which, in accordance with normal banking procedures, a Lender could
purchase such other currency with US Dollars or with a Foreign Currency, as the
case may be, at the principal office of the Sub-Agent in London, England at the
close of business on the Business Day immediately preceding the day on which
final judgment is given, together with any premiums and costs of exchange
payable in connection with such purchase.
(b) Indemnity. The obligation of the Borrower in respect of any sum
---------
due from it to the Administrative Agent or any Lender hereunder or under any
Note or Notes shall, notwithstanding any
<PAGE>
63
judgment in a currency other than US Dollars or a Foreign Currency, as the case
may be, be discharged only to the extent that on the Business Day next
succeeding receipt by the Administrative Agent or such Lender of any sum
adjudged to be so due in such other currency, the Administrative Agent or such
Lender may, in accordance with normal banking procedures, purchase US Dollars or
such Foreign Currency, as the case may be, with such other currency. If the US
Dollars or such Foreign Currency so purchased are less than the sum originally
due to such Administrative Agent or such Lender in US Dollars or in such Foreign
Currency, the Borrower agrees, as a separate obligation and notwithstanding any
such judgment, to indemnify the Administrative Agent or such Lender against such
loss, and if the US Dollars or such Foreign Currency so purchased exceed the sum
originally due to the Administrative Agent or any Lender in US Dollars or in
such Foreign Currency, as the case may be, the Administrative Agent or such
Lender agrees to remit to the Borrower such excess.
SECTION 8.12. Jurisdiction, Etc. (a) Each of the parties hereto
-----------------
hereby irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of any New York state court or any federal court
of the United States of America sitting in New York City, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement or the Notes, or for recognition or enforcement of any
judgment in respect thereof, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York state court or, to
the extent permitted by law, in any such federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that any party may otherwise have to bring any action or proceeding
relating to this Agreement or the Notes in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any action
or proceeding arising out of or relating to this Agreement or the Notes in any
New York state or federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
SECTION 8.13. Waiver of Jury Trial. The Borrower, the Administrative
--------------------
Agent and the Lenders hereby irrevocably waives all right to trial by jury in
any action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Agreement or the Notes or the
actions of the Administrative Agent or any Lender in the negotiation,
administration, performance or enforcement hereof or thereof.
<PAGE>
$14,000,000 FLEET BANK, N.A.
By /s/ Thomas J. Levy
_______________________________________
Name: Thomas J. Levy
Title: Vice President
TOTAL OF COMMITMENTS
- --------------------
$175,000,000
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
THE BORROWER
------------
TRUE NORTH COMMUNICATIONS INC.
By /s/ Kenneth J. Ashley
____________________________________________
Name: Kenneth J. Ashley
Title: Treasurer
THE ADMINISTRATIVE AGENT
------------------------
CITIBANK, N.A., as Administrative Agent
By /s/ Carolyn A. Kee
____________________________________________
Name: Carolyn A. Kee
Title: Attorney-in-Fact
THE INITIAL LENDERS
-------------------
COMMITMENT
- ----------
$42,000,000 CITIBANK, N.A.
By /s/ Carolyn A. Kee
____________________________________________
Name: Carolyn A. Kee
Title: Attorney-in-Fact
$24,500,000 THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Scott D. Moreen
____________________________________________
Name: Scott D. Moreen
Title: Vice President
<PAGE>
$24,500,000 BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By /s/ Timothy J. Pepowski
____________________________________________
Name: Timothy J. Pepowski
Title: Senior Vice President
$24,500,000 THE CHASE MANHATTAN BANK
By /s/ Thomas J. Cox
____________________________________________
Name: Thomas J. Cox
Title: Vice President
$17,500,000 THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH
By /s/ Hajime Watanabe
____________________________________________
Name: Hajime Watanabe
Title: Deputy General Manager
$14,000,000 BANQUE NATIONALE DE PARIS
By /s/ Arnaud Collin du Bocage
____________________________________________
Name: Arnaud Collin du Bocage
Title: Executive Vice President
& General Manager
$14,000,000 THE NORTHERN TRUST COMPANY
By /s/ Joseph A. Wemhoff
____________________________________________
Name: Joseph A. Wemhoff
Title: Vice President
<PAGE>
SCHEDULE I TO THE CREDIT AGREEMENT
COMMITMENTS AND APPLICABLE LENDING OFFICES
<TABLE>
<CAPTION>
NAME OF DOMESTIC EUROCURRENCY
INITIAL LENDER COMMITMENT LENDING OFFICE LENDING OFFICE
-------------- ---------- -------------- --------------
<S> <C> <C> <C>
Citibank, N.A. $18,000,000 Two Penns Way, Suite 200 Two Penns Way, Suite 200
New Castle, DE 19720 New Castle, DE 19720
Attn: Kent Leonard Attn: Kent Leonard
Tel: (302) 894-6016 Tel: (302) 894-6016
Fax: (302) 894-6120 Fax: (302) 894-6120
Bank of America National Trust $10,500,000 231 South LaSalle Street, 231 South LaSalle Street,
and Savings Association 11th Floor 11th Floor
Chicago, IL 60697 Chicago, IL 60697
Attn: Fred Johnson Attn: Fred Johnson
Tel: (312) 828-6706 Tel: (312) 828-6706
Fax: (312) 974-1199 Fax: (312) 974-1199
The First National Bank $10,500,000 One First National Plaza One First National Plaza
of Chicago Suite 0088 1-14 Suite 0088 1-14
Chicago, IL 60670 Chicago, IL 60670
Attn: Richard Bedell Attn: Richard Bedell
Tel: (312) 732-2413 Tel: (312) 732-2413
Fax: (312) 732-1117 Fax: (312) 732-1117
The Chase Manhattan Bank $10,500,000 600 Fifth Avenue, 600 Fifth Avenue,
5th Floor 5th Floor
New York, NY 10020 New York, NY 10020
Attn: Tom Cox Attn: Tom Cox
Tel: (212) 332-4355 Tel: (212) 332-4355
Fax: (212) 332-4370 Fax: (212) 332-4370
The Bank of Tokyo-Mitsubishi, $ 7,500,000 227 W. Monroe Street, 227 W. Monroe Street,
Ltd., Chicago Branch Suite 2300 Suite 2300
</TABLE>
Exhibits to True North Communications 364-Day Credit Agreement
<PAGE>
<TABLE>
<CAPTION>
NAME OF DOMESTIC EUROCURRENCY
INITIAL LENDER COMMITMENT LENDING OFFICE LENDING OFFICE
-------------- ---------- -------------- --------------
<S> <C> <C> <C>
Chicago, IL 60606 Chicago, IL 60606
Attn: Diane Tkach Attn: Diane Tkach
Tel: (312) 696-4663 Tel: (312) 696-4663
Fax: (312) 696-4535 Fax: (312) 696-4535
Banque Nationale de Paris $ 6,000,000 209 South LaSalle Street 209 South LaSalle Street
Chicago, IL 60604 Chicago, IL 60604
Attn: Jo Ellen Bender Attn: Jo Ellen Bender
Tel: (312) 977-2225 Tel: (312) 977-2225
Fax: (312) 977-1380 Fax: (312) 977-1380
The Northern Trust Company $ 6,000,000 50 South LaSalle Street 50 South LaSalle Street
Chicago, IL 60675 Chicago, IL 60675
Attn: Michelle Teleak Attn: Michelle Teleak
Tel: (312) 444-3506 Tel: (312) 444-3506
Fax: (312) 444-5055 Fax: (312) 444-5055
Fleet Bank, N.A. $ 6,000,000 1185 Avenue of the Americas 1185 Avenue of the Americas
New York, NY 10036 New York, NY 10036
Attn: Thomas Levy Attn: Thomas Levy
Tel: (212) 819-5751 Tel: (212) 819-5751
Fax: (212) 819-4112 Fax: (212) 819-4112
</TABLE>
Exhibits to True North Communications 364-Day Credit Agreement
<PAGE>
EXHIBIT A-1 TO THE CREDIT AGREEMENT
FORM OF REVOLVING CREDIT PROMISSORY NOTE
U.S.$_______________ Dated: _________ __, _______
FOR VALUE RECEIVED, the undersigned, TRUE NORTH COMMUNICATIONS INC., a
Delaware corporation (the "BORROWER"), HEREBY PROMISES TO PAY to the order of
______________ (the "LENDER") for the account of its Applicable Lending Office
(as defined in the Credit Agreement referred to below) on the Revolver
Termination Date (as defined in the Credit Agreement), the principal amount of
U.S. [SPECIFY PRINCIPAL AMOUNT OF THE LENDER'S COMMITMENT IN WORDS] DOLLARS or,
if different, the aggregate principal amount of all Revolving Credit Advances
(as defined in the Credit Agreement) made by the Lender to the Borrower pursuant
to the Credit Agreement and outstanding on the Revolver Termination Date or the
Maturity Date, as applicable. Capitalized terms not otherwise defined in this
Promissory Note shall have the same meanings as specified therefor in the Credit
Agreement.
The Borrower promises to pay interest on the unpaid principal amount
of each Revolving Credit Advance made by the Lender from the date of such
Revolving Credit Advance until such principal amount is paid in full, at such
interest rates, and payable at such times, as are specified in the Credit
Agreement.
Both principal of and interest on each Revolving Credit Advance made
by the Lender (a) in US Dollars, are payable in lawful money of the United
States of America to Citibank, N.A., as Administrative Agent, at Two Penns Way,
New Castle, Delaware 19720, Account No. 36852248, Reference: True North
Communications Inc. (or such other account maintained by the Administrative
Agent and designated thereby in a written notice to the Borrower and the
Lender), in same day funds, and (b) in any Foreign Currency, are payable in such
Foreign Currency at the applicable Payment Office in same day funds. Each
Revolving Credit Advance owing to the Lender pursuant to the Credit Agreement,
and all payments made on account of principal thereof, shall be recorded by the
Lender and, prior to any transfer hereof, endorsed on the grid attached hereto
which is part of this Promissory Note; provided that the failure of the Lender
to make any such recordation or endorsement shall not affect the obligations of
the Borrower under or in respect of this Promissory Note or the Credit
Agreement.
This Promissory Note is one of the Revolving Credit Notes referred to
in, and is entitled to the benefits of, the Credit Agreement dated as of May 29,
1998 (as amended, supplemented or otherwise modified from time to time, the
"CREDIT AGREEMENT", the terms defined therein being used herein as therein
defined) among the Borrower, the Lender and certain other banks, financial
institutions and other institutional lenders party thereto and Citibank, N.A.,
as Administrative Agent for the Lender and such other banks, financial
institutions and other institutional lenders thereunder. The Credit Agreement,
among other things, (A) provides for the making of Revolving Credit Advances by
the Lender to the Borrower from time to time on and after the Effective Date in
an aggregate amount not to exceed at any time outstanding the U.S. Dollar amount
first above mentioned (or the Equivalent thereof in the Foreign Currencies in
which any such Revolving Credit Advances are denominated), the indebtedness of
the Borrower resulting from each such Revolving Credit Advance being evidenced
by this Promissory Note, (B) contains provisions for determining the Equivalent
in US Dollars of the Revolving Credit Advances denominated in Foreign Currencies
and (C) is subject to optional and mandatory commitment reductions and
prepayments on account
<PAGE>
A-1-ii
of principal hereof, in whole or in part, prior to the maturity hereof upon the
terms and conditions specified in Sections 2.05 and 2.10 of the Credit
Agreement.
Upon the occurrence and during the continuance of one or more Events
of Default, the unpaid principal amount of this Promissory Note and all accrued
and unpaid interest hereon and other amounts payable in respect hereof and of
the Credit Agreement and the other Notes may become, or may be declared to be,
immediately due and payable as provided in Section 6.01 of the Credit Agreement.
The terms of this Promissory Note may be amended, supplemented or
otherwise modified only in the manner provided in the Credit Agreement.
The Borrower hereby waives presentment, demand, protest and notice of
any kind. No failure on the part of the holder hereof to exercise, and no delay
in exercising, any right, power or privilege hereunder shall operate as a waiver
thereof or a consent thereto; nor shall a single or partial exercise of any such
right, power or privilege preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of New York.
TRUE NORTH COMMUNICATIONS INC.
By____________________________________
Name:
Title:
<PAGE>
ADVANCES AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
========================================================================================================
AMOUNT/CURRENCY OF AMOUNT OF
REVOLVING PRINCIPAL PAID UNPAID PRINCIPAL NOTATION
DATE CREDIT ADVANCE OR PREPAID BALANCE MADE BY
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
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========================================================================================================
</TABLE>
<PAGE>
EXHIBIT A-2 TO THE CREDIT AGREEMENT
FORM OF COMPETITIVE BID PROMISSORY NOTE
U.S. $_______________ Dated: _________ __, _______
FOR VALUE RECEIVED, the undersigned, TRUE NORTH COMMUNICATIONS INC., a
Delaware corporation (the "BORROWER"), HEREBY PROMISES TO PAY to the order of
_______________ (the "LENDER"), for the account of its Applicable Lending Office
(as defined in the Credit Agreement referred to below) on ________________,
____, the lesser of (a) the principal amount of U.S.[SPECIFY PRINCIPAL AMOUNT
EVIDENCED BY THIS PROMISSORY NOTE IN WORDS] DOLLARS and (b) the principal amount
of the Competitive Bid Advance (as defined in the Credit Agreement) made by the
Lender and evidenced by this Promissory Note, and outstanding on
________________, ____. Capitalized terms not otherwise defined in this
Promissory Note shall have the same meanings as specified therefor in the Credit
Agreement.
The Borrower promises to pay interest on the unpaid principal amount
of the Competitive Bid Advance evidenced by this Promissory Note from the date
hereof until such principal amount is paid in full, at the interest rate and
payable on the interest payment date or dates provided below and on the date
such principal amount is paid in full:
Interest Rate: _____% per annum (calculated on the basis of a year of
360 days for the actual number of days elapsed).
Maturity Date: _____________________
Interest Payment Date(s): _____________________
Both principal and interest on the unpaid principal amount of the
Competitive Bid Advance evidenced by this Promissory Note are payable in lawful
money of the United States of America to Citibank, N.A., as Administrative
Agent, for the account of the Lender, at Two Penns Way, New Castle, Delaware
19720, Account No. 36852248, Reference: True North Communications Inc., in same
day funds (or such other account maintained by the Administrative Agent and
designated thereby in a written notice to the Borrower and the Lender).
The principal amount of the Competitive Bid Advance evidenced by this
Promissory Note [may] [may not] be prepaid, in whole or in part [upon at least
___ Business Days' notice to the Administrative Agent and the Lender, together
with accrued interest to the date of such prepayment on the principal amount so
prepaid; provided, however, that (i) each partial prepayment shall be in an
aggregate amount of U.S. $_________ or an integral multiple of U.S. $_________
in excess thereof and (ii) the Borrower shall be obligated to reimburse the
Lender in respect thereof pursuant to Section 8.04(c) of the Credit Agreement].
This Promissory Note is one of the Competitive Bid Notes referred to
in, and is entitled to the benefits of, the Credit Agreement dated as of May 29,
1998 (as amended, supplemented or otherwise modified from time to time, the
"CREDIT AGREEMENT"; the terms defined therein being used herein as therein
defined) among the Borrower, the Lender and certain other banks, financial
institutions and other
<PAGE>
A-2-ii
institutional lenders party thereto and Citibank, N.A., as Administrative Agent
for the Lender and such other banks, financial institutions and other
institutional lenders thereunder.
Upon the occurrence and during the continuance of one or more Events
of Default, the unpaid principal amount of this Promissory Note and all accrued
and unpaid interest hereon and other amounts payable in respect hereof and of
the Credit Agreement and the other Notes may become, or may be declared to be,
immediately due and payable as provided in Section 6.01 of the Credit Agreement.
The terms of this Promissory Note may be amended, supplemented or
otherwise modified only in the manner provided in the Credit Agreement.
The Borrower hereby waives presentment, demand, protest and notice of
any kind. No failure on the part of the holder hereof to exercise, and no delay
in exercising, any right, power or privilege hereunder shall operate as a waiver
thereof or a consent thereto; nor shall a single or partial exercise of any such
right, power or privilege preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of New York.
TRUE NORTH COMMUNICATIONS INC.
By____________________________________
Name:
Title:
<PAGE>
EXHIBIT B-1 TO THE CREDIT AGREEMENT
FORM OF NOTICE OF REVOLVING CREDIT BORROWING
[Date of Notice of Revolving
Credit Borrowing]
Citibank, N.A., as Administrative Agent
for the Lenders party to the
Credit Agreement referred to below
[Address]
Attention: ____________________
Ladies and Gentlemen:
The undersigned, TRUE NORTH COMMUNICATIONS INC., a Delaware
corporation, refers to the Credit Agreement dated as of May 29, 1998 (as
amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"; capitalized terms defined therein unless otherwise defined herein
being used herein as therein defined) among the undersigned, the banks,
financial institutions and other institutional lenders (collectively, the
"LENDERS") party thereto and Citibank, N.A., as Administrative Agent for the
Lenders thereunder, and hereby gives you notice, irrevocably, pursuant to
Section 2.02 of the Credit Agreement, that the undersigned hereby requests a
Revolving Credit Borrowing under the Credit Agreement and, in connection
therewith, sets forth below the information relating to such Revolving Credit
Borrowing (the "PROPOSED REVOLVING CREDIT BORROWING") as required by Section
2.02(a) of the Credit Agreement:
(a) The Business Day of the Proposed Revolving Credit Borrowing is
requested to be _________, ____.
(b) The Type of Advances requested to comprise the Proposed Revolving
Credit Borrowing is [Base Rate Advances] [Eurocurrency Rate Advances].
(c) The requested currency of the Proposed Revolving Credit Borrowing
is [US Dollars] [SPECIFY FOREIGN CURRENCY].
(d) The aggregate principal amount of the Proposed Revolving Credit
Borrowing is _______________.
[(e) The initial Interest Period that is requested for each
Eurocurrency Rate Advance to be made as part of the Proposed Revolving
Credit Borrowing is [one week] [one month] [two months] [three months] [six
months].]
The undersigned hereby certifies that the following statements are
true on and as of the date of this Notice of Revolving Credit Borrowing and will
be true on and as of the date of the Proposed Revolving Credit Borrowing:
__________________________
To be included in each Notice of Revolving Credit Borrowing for a Proposed
Revolving Credit Borrowing requested to be comprised of Eurocurrency Rate
Advances.
<PAGE>
B-1-ii
(i) The representations and warranties contained in Section 4.01 of
the Credit Agreement (except for the representation and warranty set
forth in clause (i) of Section 4.01(f) of the Credit Agreement) are
correct, before and after giving effect to the Proposed Revolving Credit
Borrowing and to the application of the proceeds therefrom, as though made
on and as of such date; and
(ii) No event has occurred and is continuing, or would result from
the Proposed Revolving Credit Borrowing or from the application of the
proceeds therefrom, that constitutes a Default.
Very truly yours,
TRUE NORTH COMMUNICATIONS INC.
By___________________________________
Name:
Title:
cc: _______________
<PAGE>
EXHIBIT B-2 TO THE CREDIT AGREEMENT
FORM OF NOTICE OF COMPETITIVE BID BORROWING
[Date of Notice of Competitive
Bid Borrowing]
To each of the Lenders party to the
Credit Agreement referred to below
and to Citibank, N.A., as Administrative
Agent for said Lenders
[Address]
Attention: ____________________
Ladies and Gentlemen:
The undersigned, TRUE NORTH COMMUNICATIONS INC., a Delaware
corporation, refers to the Credit Agreement dated as of May 29, 1998 (as
amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"; capitalized terms defined therein unless otherwise defined herein
being used herein as therein defined) among the undersigned, the banks,
financial institutions and other institutional lenders (collectively, the
"LENDERS") party thereto and Citibank, N.A., as Administrative Agent for the
Lenders thereunder, and hereby gives you notice, irrevocably, pursuant to
Section 2.03 of the Credit Agreement, that the undersigned hereby requests a
Competitive Bid Borrowing under the Credit Agreement and, in that connection,
sets forth the terms on which such Competitive Bid Borrowing (the "PROPOSED
COMPETITIVE BID BORROWING") is requested to be made:
(a) Date of Proposed Competitive ________________________
Bid Borrowing
(b) Amount of Proposed Competitive
Bid Borrowing U.S.$____________________
(c) Maturity Date of
Proposed Competitive Bid Borrowing ________________________
(d) Terms of Prepayment of
Proposed Competitive Bid Borrowing [May [not] be prepaid
[with] [without] penalty]
(e) Interest Payment Date(s) ________________________
(f) ____________________ ________________________
(g) ____________________ ________________________
The undersigned hereby certifies that the following statements are
true on and as of the date of this Notice of Competitive Bid Borrowing and will
be true on and as of the date of the Proposed Competitive Bid Borrowing:
(i) The representations and warranties contained in Section 4.01 of
the Credit Agreement (except for the representation and warranty set forth
in clause (i) of Section 4.01(f) of the Credit Agreement) are correct,
before and after giving effect to the Proposed Competitive Bid Borrowing
and to the application of the proceeds therefrom, as though made on and as
of such date; and
(ii) No event has occurred and is continuing, or would result from
the Proposed Competitive Bid Borrowing or from the application of the
proceeds therefrom, that constitutes a Default.
The undersigned hereby confirms that the Proposed Competitive Bid
Borrowing is to be made available to it in accordance with Section 2.03(a)(iv)
of the Credit Agreement.
<PAGE>
B-2-ii
Very truly yours,
TRUE NORTH COMMUNICATIONS INC.
By___________________________________
Name:
Title:
cc: Citicorp Securities, Inc.
[Address]
Attention: _______________
<PAGE>
EXHIBIT C-1 TO THE CREDIT AGREEMENT
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of May 29, 1998 (as
amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT") among True North Communications Inc., a Delaware corporation, the
banks, financial institutions and other institutional lenders (collectively, the
"LENDERS") party thereto and Citibank, N.A., as Administrative Agent for the
Lenders thereunder. Capitalized terms not otherwise defined in this Assignment
and Acceptance shall have the same meanings as specified therefor in the Credit
Agreement.
The "Assignor" and the "Assignee" referred to on Schedule I hereto
hereby agree as follows:
1. The Assignor hereby sells and assigns, without recourse except as
to the representations and warranties made by the Assignor herein, to the
Assignee, and the Assignee hereby purchases and assumes from the Assignor, an
interest in and to the Assignor's rights and obligations under the Credit
Agreement as of the Effective Date (as hereinafter defined) (other than in
respect of Competitive Bid Advances and Competitive Bid Notes) equal to the
percentage interest specified on Schedule I hereto of all outstanding rights and
obligations under the Credit Agreement (other than in respect of Competitive Bid
Advances and Competitive Bid Notes). After giving effect to such sale and
assignment, the Assignee's Commitment and the principal amount of the Revolving
Credit Advances owing to the Assignee will be as set forth on Schedule I hereto.
2. The Assignor (a) hereby represents and warrants that it is the
legal and beneficial owner of the interest being sold and assigned by it
hereunder and that such interest is free and clear of any adverse claim; (b)
makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with
the Credit Agreement or any Note or any of the instruments or documents
furnished pursuant thereto, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement or any
Note, or any of the instruments or documents furnished pursuant thereto; (c)
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of the Borrower or the performance or observance by
the Borrower of any of its obligations under or in respect of the Credit
Agreement or any Note, or any of the instruments or documents furnished pursuant
thereto; and (d) attaches the Revolving Credit Note held by the Assignor and
requests that the Administrative Agent exchange such Revolving Credit Note for
[a new Revolving Credit Note payable to the order of the Assignee in an amount
equal to the Commitment assumed by the Assignee pursuant hereto]1 [new Revolving
Credit Notes payable to the order of the Assignee in an amount equal to the
Commitment assumed by the Assignee pursuant hereto and the Assignor in an amount
equal to the Commitment retained by the Assignor under the Credit Agreement,
respectively, as specified on Schedule I hereto].2
3. The Assignee (a) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
in Section 4.01(e) thereof and such other
_________________________
To be included in each Assignment and Acceptance pursuant to which the
Assignor is assigning its entire Commitment.
To be included in each Assignment and Acceptance pursuant to which the
Assignor is assigning a portion of its Commitment.
<PAGE>
C-1-ii
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (b) agrees
that it will, independently and without reliance upon the Administrative Agent,
the Assignor or any other Lender and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Credit Agreement; (c) confirms that it
is an Eligible Assignee; (d) appoints and authorizes the Administrative Agent
and the Sub-Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement as are delegated to the
Administrative Agent and the Sub-Agent, respectively, by the terms thereof,
together with such powers and discretion as are reasonably incidental thereto;
(e) agrees that it will perform in accordance with their terms all of the
obligations that by the terms of the Credit Agreement are required to be
performed by it as a Lender; (f) specifies as its Applicable Lending Offices the
offices set forth below its name on Schedule I hereto; and (g) attaches any U.S.
Internal Revenue Service forms required to be provided by it under Section 2.14
of the Credit Agreement, and agrees to provide from time to time any successor
or other form prescribed by the Internal Revenue Service as required to be
provided by it under Section 2.14 of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance, it will
be delivered to the Administrative Agent for acceptance and recording in the
Register by the Administrative Agent. The effective date for this Assignment
and Acceptance (the "EFFECTIVE DATE") shall be the date of acceptance and
recording hereof in the Register by the Administrative Agent or such later date
as shall be specified therefor on Schedule I hereto.
5. Upon such acceptance and recording in the Register by the
Administrative Agent, as of the Effective Date, (a) the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and (b) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights (other than its rights under Sections 2.07(c), 2.11, 2.14
and 8.04 of the Credit Agreement to the extent any claim thereunder relates to
an event arising prior to such assignment) and be released from its obligations
(other than its obligations under Section 7.05 to the extent any claim
thereunder relates to an event arising prior to such assignment) under the
Credit Agreement.
6. Upon such acceptance and recording in the Register by the
Administrative Agent, from and after the Effective Date, the Administrative
Agent shall make all payments under the Credit Agreement and the Revolving
Credit Notes in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest, Commitment Fees and Utilization
Fees with respect thereto) to the Assignee. The Assignor and Assignee shall
make all appropriate adjustments in payments under the Credit Agreement and the
Revolving Credit Notes for periods prior to the Effective Date directly between
themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Schedule I hereto by telecopier shall be effective as delivery of
a manually executed counterpart of this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule
I hereto to be executed by their officers thereunto duly authorized, as of the
date specified thereon.
<PAGE>
SCHEDULE I TO ASSIGNMENT AND ACCEPTANCE
Percentage interest assigned: ______________%
Assignee's Commitment: $_____________
Aggregate outstanding principal amount of
Revolving Credit Advances in US Dollars assigned:
$_____________
Average outstanding principal amount of Revolving
Credit Advances in lawful currency of the United
Kingdom of Great Britain and Northern Ireland assigned: (pounds)______
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of the Federal Republic of
Germany assigned: DM____________
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of the Republic of France
assigned: FFR___________
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of The Swiss Confederation
assigned: _______________
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of The Kingdom of the
Netherlands assigned: _______________
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of Japan assigned: _______________
[Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of the European Economic and
Monetary Union assigned:] ______________]
Principal amount of Revolving Credit Note payable to
Assignee: $______________
Principal amount of Revolving Credit Note payable to
Assignor: $______________
Effective Date (if other than the date of acceptance and
recording in the Register by the Administrative Agent):3 _________, ____
___________________________
3 This date should be no earlier than five Business Days after the delivery of
this Assignment and Acceptance to the Administrative Agent.
<PAGE>
2
[NAME OF ASSIGNOR], as Assignor
By________________________________________
Name:
Title:
Dated: _______________, ____
[NAME OF ASSIGNEE], as Assignee
By________________________________________
Name:
Title:
Dated: _______________, 199_
Base Rate Lending Office:
[Address]
Eurocurrency Lending Office:
[Address]
Accepted [and Approved]4 this
__________ day of _______________, ____
CITIBANK, N.A., as Administrative Agent
By___________________________________
Name:
Title:
[Approved this __________ day
of _______________, ____
TRUE NORTH COMMUNICATIONS INC.
By_________________
________________________
4 Required if the Assignee is an Eligible solely by reason of clause (iii) of
the definition of "Eligible Assignee" set forth in Section 1.01 of the Credit
Agreement.
<PAGE>
EXHIBIT C-2 TO THE CREDIT AGREEMENT
FORM OF ASSUMPTION AGREEMENT
[Date]
True North Communications Inc.
101 East Erie Street
Chicago, Illinois 60611-2897
Attention: ________________
Citibank, N.A., as Administrative Agent
for the Lenders party to the
Credit Agreement referred to below
[399 Park Avenue
New York, New York 10043]
Attention: ________________
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of May 29, 1998 (as
amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT") among True North Communications Inc., a Delaware corporation (the
"COMPANY"), the banks, financial institutions and other institutional lenders
(collectively, the "LENDERS") party thereto and Citibank, N.A., as
Administrative Agent for the Lenders thereunder. Capitalized terms not
otherwise defined in this Agreement shall have the same meanings as specified
therefor in the Credit Agreement.
___________ (the "NON-CONSENTING LENDER") and ___________ (the
"ASSUMING LENDER") hereby agree as follows:
1. The Assuming Lender proposes to become a Lender pursuant to
Section 2.17(c) of the Credit Agreement and, in that connection, hereby
agrees with the Administrative Agent and the Company that it shall become a
Lender for all purposes of the Credit Agreement on the applicable Extension
Date. In connection therewith, the Non-Consenting Lender hereby sells and
assigns, without recourse except as to the representations and warranties
made by the Non-Consenting Lender herein, to the Assuming Lender, and the
Assuming Lender hereby purchases and assumes from the Non-Consenting
Lender, all interest in and to the Non-Consenting Lender's rights and
obligations under the Credit Agreement (other than in respect of
Competitive Bid Advances and Competitive Bid Notes) as of the applicable
Extension Date, which interest is equal to _____% of all outstanding rights
and obligations of the Lenders under the Credit Agreement (other than in
respect of Competitive Bid Advances and Competitive Bid Notes) on such
Extension Date. After giving effect to such sale and assignment, the
Assuming Lender's Commitment and the principal amount of the Revolving
Credit Advances owing to the Assuming Lender will be as set forth on
Schedule I hereto.
2. The Non-Consenting Lender (a) represents and warrants that it is
the legal and beneficial owner of the interest being sold and assigned by
it hereunder and that such interest is free and clear of any adverse claim;
(b) makes no representation or warranty and assumes no
<PAGE>
C-2-ii
responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or any
of the instruments or documents furnished pursuant thereto, or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement or any Note, or any other instrument or
document furnished pursuant thereto; (c) makes no representation or
warranty and assumes no responsibility with respect to the financial
condition of the Borrower or the performance or observance by the Borrower
of any of its obligations under or in respect of the Credit Agreement or
any Note, or any other instrument or document furnished pursuant thereto;
and (d) attaches the Revolving Credit Note held by the Non-Consenting
Lender and requests that the Administrative Agent exchange such Revolving
Credit Note for a new Revolving Credit Note payable to the order of the
Assuming Lender in an amount equal to the Commitment assumed by the
Assuming Lender pursuant hereto.
3. The Assuming Lender (a) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements
referred to in Section 4.01(e) thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis
and decision to enter into this Assumption Agreement; (b) agrees that it
will, independently and without reliance upon the Administrative Agent, the
Non-Consenting Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the Credit
Agreement; (c) confirms that it is an Eligible Assignee; (d) appoints and
authorizes the Administrative Agent and the Sub-Agent to take such action
as agent on its behalf and to exercise such powers and discretion under the
Credit Agreement as are delegated to the Administrative Agent and the Sub-
Agent, respectively, by the term thereof, together with such powers and
discretion as are reasonably incidental thereto; (e) agrees that it will
perform in accordance with their terms all of the obligations that by the
terms of the Credit Agreement are required to be performed by it as a
Lender; (f) specifies as its Applicable Lending Offices the offices set
forth below its name on the signature page hereof; and (g) attaches any
U.S. Internal Revenue Service forms required to be provided by it under
Section 2.14 of the Credit Agreement, and agrees to provide from time to
time any successor or other form prescribed by the Internal Revenue Service
as required to be provided by it under Section 2.14 of the Credit
Agreement.
4. Following the execution of this Assumption Agreement, it will be
delivered to the Administrative Agent for acceptance and recording in the
Register by the Administrative Agent. The effective date for this
Assumption Agreement (the "EFFECTIVE DATE") shall be the applicable
Extension Date.
5. Upon satisfaction of the applicable conditions set forth in
Section 2.17 (including, without limitation, the conditions set forth in
Article III of the Credit Agreement) and upon such acceptance and recording
in the Register by the Administrative Agent, as of the Effective Date, the
Assuming Lender shall be a party to the Credit Agreement and have the
rights and obligations of a Lender thereunder and, subject to the proviso
set forth below, the Non-Consenting Lender shall cease to be a party
thereto; provided, however, that the Non-Consenting Lender's rights and
obligations under Sections 2.07(c), 2.11, 2.14 and 8.04, and its
obligations under Section 7.05, of the Credit Agreement shall survive the
assumption of all of the Non-Consenting Lender's rights and obligations
under the Credit Agreement pursuant to this Assumption Agreement as to
matters occurring prior to the Effective Date.
<PAGE>
C-2-iii
6. This Assumption Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
7. This Assumption Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. Delivery
of an executed counterpart of this Assumption Agreement by telecopier shall
be effective as delivery of a manually executed counterpart of this
Assumption Agreement.
Very truly yours,
[NAME OF ASSUMING LENDER]
By____________________________
Name:
Title:
Date: __________, ____
Base Rate Lending Office:
[Address]
Eurocurrency Lending Office
[Address]
Acknowledged and Agreed to as
of this _______ day of ________, ____:
[NAME OF NON-CONSENTING LENDER]
By___________________________________
Name:
Title:
<PAGE>
C-2-iv
Accepted and Approved this
___ day of __________, ____:
CITIBANK, N.A., as Administrative Agent
By______________________
Name:
Title:
Approved this ____ day
of __________, ____:
TRUE NORTH COMMUNICATIONS INC.
By______________________
Name:
Title:
<PAGE>
SCHEDULE I TO ASSIGNMENT AND ACCEPTANCE
Percentage interest assigned: ______________%
Assuming Lender's Commitment: _______________
Aggregate outstanding principal amount of
Revolving Credit Advances in US Dollars assumed: $______________
Average outstanding principal amount of Revolving
Credit Advances in lawful currency of the United
Kingdom of Great Britain and Northern Ireland assumed: (Pounds)_______
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of the Federal Republic of
Germany assumed: DM_____________
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of the Republic of France assumed: FFR____________
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of The Swiss Confederation assumed: ______________
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of The Kingdom of
Netherlands assumed: ______________
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of Japan assumed: _______________
[Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of the European Economic and
Monetary Union assumed:] ______________]
Principal amount of Revolving Credit Note payable to Assuming Lender: $_____
Effective Date: _________, ____
<PAGE>
EXHIBIT D-1 TO THE CREDIT AGREEMENT
FORM OF OPINION OF ASSISTANT GENERAL COUNSEL FOR THE BORROWER
May 29, 1998
To each of the Lenders party to the
Credit Agreement referred to below
and to Citibank, N.A., as Administrative
Agent for said Lenders
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(g)(iii) of
the Credit Agreement dated as of May 29, 1998 (the "CREDIT AGREEMENT") among
True North Communications Inc. (the "COMPANY"), the banks, financial
institutions and other institutional lenders (collectively, the "LENDERS") party
thereto and Citibank, N.A., as Administrative Agent for the Lenders thereunder.
Capitalized terms used herein shall have the same meanings as specified therefor
in the Credit Agreement.
I am the Assistant General Counsel of the Company and have acted as
counsel for the Company in connection with the preparation, execution and
delivery of the Credit Agreement.
In that connection, I have examined originals or copies, certified or
otherwise identified to my satisfaction, of:
(1) The Credit Agreement; and
(2) The Revolving Credit Notes of the Company.
I have also examined the originals, or copies certified to my
satisfaction, of such (i) certificates of public officials, (ii) certificates of
officers and representatives of the Company and its Subsidiaries, and (iii)
other documents and records, and I have made such inquiries of officers and
representatives of the Company and its Subsidiaries, as I have deemed relevant
or necessary as the basis for the opinions expressed below. I have relied as to
factual matters upon, and assumed the accuracy of, such certificates and other
statements, documents and records supplied to me by the Company and its
Subsidiaries, and I have assumed the genuineness of all signatures (other than
signatures of officers of the Company and its Subsidiaries) and the authenticity
of all documents submitted to us as originals and the conformity to original
documents of all documents submitted to me as certified or photostatic copies.
My opinions expressed below is limited to the laws of the State of
Illinois and the federal law of the United States.
Based upon the foregoing and subject to the qualifications stated
herein, I am of the opinion that, as of the date hereof:
1. The execution, delivery and performance by the Company of the
Credit Agreement and the Notes, and the consummation of the transactions
contemplated thereby, do not contravene any
<PAGE>
D-1-ii
judgment, order, writ, injunction, decree, determination or award binding on or
affecting the Company of which I am aware.
2. To my knowledge, there is no action, suit, investigation,
litigation, arbitration or proceeding (including, without limitation, any
Environmental Action) affecting the Company or any of its Subsidiaries pending
or threatened before any court, governmental agency or arbitrator that purports
to affect the legality, validity or enforceability of the Credit Agreement or
any Note or the consummation of the transactions contemplated thereby or, except
as described on Schedule 3.01(b) to the Credit Agreement, that, either
individually or in the aggregate, could reasonably be expected to have a
material adverse effect on the business, financial condition, operations,
properties or performance of the Company and its Subsidiaries, taken as a whole.
This opinion is being delivered to you as of the date hereof and is
solely for your benefit in connection with the transaction contemplated in the
Credit Agreement and may not be relied on in any manner or for any purpose by
any other person or entity, nor any copies published, communicated or otherwise
made available in whole or in part to any other person or entity, without my
express prior written consent, except that you may furnish copies hereof to each
party that becomes a Lender after the date hereof pursuant to the Credit
Agreement, and such parties may rely on this opinion as if it had been
originally addressed to them.
I do not express my opinion, either implicitly or otherwise, on any
issue not expressly addressed in numbered Paragraphs 1 and 2. The opinions
expressed above are based solely on facts, laws and regulations existing and in
effect on the date hereof, and I assume no obligation to revise or supplement
these opinions should such facts change or should such laws or regulations be
changed by legislative or regulatory action, judicial decision or otherwise,
notwithstanding that such changes may effect the legal analysis or conclusions
contained in these opinions.
Very truly yours,
[Name]
Assistant General Counsel
<PAGE>
EXHIBIT D-2 TO THE CREDIT AGREEMENT
FORM OF OPINION OF COUNSEL FOR THE BORROWER
May 29, 1998
To each of the Lenders party to the
Credit Agreement referred to below
and to Citibank, N.A., as Administrative
Agent for said Lenders
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(g)(iii) of
the Credit Agreement dated as of May 29, 1998 (the "CREDIT AGREEMENT") among
True North Communications Inc. (the "COMPANY"), the banks, financial
institutions and other institutional lenders (collectively, the "LENDERS") party
thereto and Citibank, N.A., as Administrative Agent for the Lenders thereunder.
Capitalized terms used herein shall have the same meanings as specified therefor
in the Credit Agreement.
We have acted as special counsel for the Company in connection with
the preparation, execution and delivery of the Credit Agreement.
In that connection, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of:
(1) The Credit Agreement;
(2) The Revolving Credit Notes;
(3) The Certificate of Incorporation of the Company and all
amendments thereto (the "CHARTER");
(4) The by-laws of the Company and all amendments thereto (the "BY-
LAWS"); and
(5) A certificate of the Secretary of State of Delaware, dated May
__, 1998, attesting to the continued corporate existence and good standing
of the Company in that state.
We have also examined the originals, or copies certified to our
satisfaction, of the documents listed in a certificate of the Vice President and
Treasurer of our Company, dated the date hereof (the "CERTIFICATE"), certifying
that the documents listed in such certificate are all of the indentures, loan or
credit agreements, leases, guarantees, mortgages, security agreements, bonds,
notes and other agreements or instruments, and all of the orders, writs,
judgments, awards, injunctions and decrees, that restrict or purport to restrict
the Company's right to borrow money or to perform the Company's obligations
under the Credit Agreement or the Notes. In addition, we have also examined the
originals, or copies certified to our satisfaction, of such (i) certificates of
public officials, (ii) certificates of officers and representatives of the
Company and its Subsidiaries, and (iii) other documents and records, and we have
made such inquiries of officers and representatives of the Company and its
Subsidiaries, as we have deemed relevant or necessary as the basis for the
opinion expressed below. We have relied as to factual matters upon, and assumed
the
<PAGE>
D-2-ii
accuracy of, such certificates and other statements, documents and records
supplied to us by the Company and its Subsidiaries, and we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals and the conformity to original documents of all documents
submitted to us as certified or photostatic copies.
In rendering the opinions set forth herein, we have assumed that:
(i) all parties to the Credit Agreement, other than the Company, are
duly organized, validly existing and in good standing under the laws of
their respective jurisdictions of organization and have the requisite
corporate power to enter into the Credit Agreement; and
(ii) the Credit Agreement has been duly executed and delivered by all
parties thereto other than the Company and constitutes the valid and
binding obligation of all parties thereto other than the Company,
enforceable against such parties in accordance with its terms.
Our opinion below is limited to the laws of the State of New York, the
General Corporation Law of the State of Delaware and the federal law of the
United States.
Based upon the foregoing and subject to the qualifications stated
herein, we are of the opinion that, as of the date hereof:
1. The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware.
2. The execution, delivery and performance by the Company of the
Credit Agreement and the Notes, and the consummation of the transactions
contemplated thereby, are within the Company's corporate powers, have been duly
authorized by all necessary corporate action, and do not contravene (i) the
Charter or the By-laws, (ii) any law, rule or regulation applicable to the
Company (including, without limitation, any usury laws) or (iii) any contractual
or legal restriction contained in any document listed in the Certificate.
3. No authorization, approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body, or any Person
party to any document listed in the Certificate, is required for the due
execution, delivery and performance by the Company of the Credit Agreement and
its Notes or for the Company's performance of any of the terms thereof.
4. The Credit Agreement and the Notes of the Company have been duly
executed and delivered on behalf of the Company.
5. The Credit Agreement is, and after giving effect to the initial
Borrowing, the Notes of the Company will be, legal, valid and binding
obligations of the Company, enforceable against the Company in accordance with
their respective terms.
The opinions set forth above are subject to the following
qualifications:
(a) Our opinion in paragraph 5 above as to validity, binding effect
and enforceability is subject to the effect of any applicable bankruptcy,
insolvency (including, without limitation, all laws
<PAGE>
D-2-iii
relating to fraudulent transfers), reorganizations, moratorium or similar law
affecting creditors' rights generally.
(b) Our opinion in paragraph 5 above as to enforceability is subject
to (i) the effect of general principles of equity (regardless of whether
considered in a proceeding in equity or at law) and (ii) limitations imposed by
public policy under certain circumstances on the enforceability of provisions
indemnifying a party against liability for its own wrongful or negligent acts.
In applying principles of equity referred to in clause (i) above, a court, among
other things, might not allow a creditor to accelerate maturity of a debt upon
the occurrence of a default deemed immaterial. Such principles applied by a
court might include a requirement that a creditor act reasonably and in good
faith.
(c) We express no opinion as to the enforceability of the consent to
jurisdiction set forth in Section 8.12(a) of the Credit Agreement.
(d) We express no opinion as to the effect of the compliance or
noncompliance of the Administrative Agent or any Lender with any state or
federal laws or regulations applicable to the Administrative Agent or any of the
Lenders because of the Administrative Agent's or any such Lender's legal or
regulatory status, the nature of the business of the Administrative Agent of any
such Lender or the qualification of any such party to conduct business in any
jurisdiction.
The opinions expressed herein are being delivered to you as of the
date hereof and are solely for your benefit in connection with the transactions
contemplated in the Credit Agreement and may not be relied on in any manner or
for any purpose by any other person or entity, nor any copies published,
communicated or otherwise made available in whole or in part to any other person
or entity, without our express prior written consent, except that you may
furnish copies thereof to each party that becomes a Lender after the date hereof
pursuant to the Credit Agreement, and such parties may rely on this opinion as
if it had been originally addressed to them.
We do not express any opinion, either implicitly or otherwise, on any
issue not expressly addressed in numbered Paragraphs 1 through 5. The opinions
expressed above are based solely on facts, laws and regulations existing and in
effect on the date hereof, and we assume no obligation to revise or supplement
this opinion should such facts change or should such laws or regulations be
changed by legislative or regulatory action, judicial decision or otherwise,
notwithstanding that such changes may affect the legal analysis or conclusions
contained in this opinion.
Very truly yours,
<PAGE>
EXHIBIT E TO THE CREDIT AGREEMENT
TERMS OF SUBORDINATION
1. Reference is made to (a) the Credit Agreement dated as of May 29,
1998 (as amended, supplemented or otherwise modified from time to time, the
"CREDIT AGREEMENT") among True North Communications Inc., a Delaware corporation
(the "COMPANY"), the banks, financial institutions and other institutional
lenders (collectively, the "LENDERS") party thereto and Citibank, N.A., as
administrative agent (together with any successor appointed pursuant to Article
VII of the Credit Agreement, the "ADMINISTRATIVE AGENT") for the Lenders
thereunder, and (b) the loans and advances made by [NAME OF SUBSIDIARY OF THE
COMPANY MAKING LOANS OR ADVANCES] (the "SUBORDINATED CREDITOR") to [NAME OF
BORROWER] (the "PAYOR") (such loans and advances being, collectively, the
"SUBORDINATED INDEBTEDNESS"). Capitalized terms not otherwise defined in this
Agreement shall have the same meanings as specified therefor in the Credit
Agreement.
2. The Subordinated Indebtedness is, and shall be, subordinate and
subject in right of payment, to the extent and in the manner hereinafter set
forth, to the prior payment in full of all obligations of the Payor now or
hereafter existing under or in respect of (a) the Credit Agreement and the
Notes, whether direct or indirect, absolute or contingent, and whether for
principal, interest (including, without limitation, interest accruing after the
filing of a petition initiating any proceeding referred to in paragraph 5 below,
whether or not such interest accrues after the filing of such petition for
purposes of the U.S. Federal Bankruptcy Code or is an allowed claim in such
proceeding), fees, commissions, expenses or otherwise and (b) any and all
amendments, modifications, extensions, refinancings, renewals and refundings of
the obligations referred to in clause (a) of this paragraph 2 that are made in
accordance with the applicable terms thereof (all such obligations under clauses
(a) and (b) of this paragraph 2 being, collectively, the "SENIOR INDEBTEDNESS").
For the purposes of the provisions hereof, the Senior Indebtedness shall not be
deemed to have been paid in full until the latest of (i) date of payment in full
in cash of the aggregate principal amount of all outstanding Advances and all
interest accrued thereon, all fees and expenses then due and payable in
connection therewith and all other Senior Indebtedness then due and payable and
(ii) the Revolver Termination Date.
3. So long as the Senior Indebtedness shall not have been paid in
full, the Subordinated Creditor shall not (a) ask, demand or sue for, or except
in the ordinary course of business and so long as no Default under Section
6.01(a) or 6.01(e) of the Credit Agreement or Event of Default shall have
occurred and be continuing, take or receive from the Payor, directly or
indirectly, in cash or other property or by setoff or in any manner (including,
without limitation, from or by way of collateral), payment of all or any of the
Subordinated Indebtedness, (b) commence, or join with any creditor other than
the Administrative Agent in commencing, or directly or indirectly cause the
Payor to commence, or assist the Payor in commencing, any proceeding referred to
in paragraph 5 below or (c) request or accept any collateral or other security
for the Subordinated Indebtedness. If the Subordinated Creditor, in
contravention hereof, shall commence, prosecute or participate in any proceeding
referred to in paragraph 5 below, then the Administrative Agent or any Lender
may intervene and interpose as a defense or plea the terms of this Agreement in
its own name or in the name of the Subordinated Creditor.
4. Upon the occurrence and during the continuance of a Default under
Section 6.01(a) or 6.01(e) of the Credit Agreement or an Event of Default, no
payment or distribution of any assets of the Payor of any kind or character
(including, without limitation, any payment that may be payable by reason of any
other Indebtedness of the Payor being subordinated to payment of the
Subordinated Indebtedness) shall be made by or on behalf of the Payor for or on
account of any Subordinated Indebtedness, and the Subordinated Creditor shall
not ask, demand, sue for, take or receive from the Payor, directly or
indirectly,
<PAGE>
E-ii
in cash or other property or by setoff or in any other manner (including,
without limitation, from or by way of collateral), payment of all or any of the
Subordinated Indebtedness, unless and until such Default or Event of Default
shall have been cured or waived in writing or such Senior Indebtedness shall
have been paid in full, after which the Payor may resume making any and all
required payments in respect of the Subordinated Indebtedness (including any
missed payments).
5. In the event of any dissolution, winding up, liquidation,
arrangement, reorganization, adjustment, protection, relief or composition of
the Payor or its debts, whether voluntary or involuntary, in any bankruptcy,
insolvency, arrangement, reorganization, receivership, relief or other similar
case or proceeding under the United States Federal Bankruptcy Code or any other
federal, state or foreign bankruptcy, insolvency or similar law or upon an
assignment for the benefit of creditors or any other marshalling of the assets
and liabilities of the Payor or otherwise, the Administrative Agent, for its
benefit and the ratable benefit of the Lenders, shall be entitled to receive
payment in full of all of the Senior Indebtedness before the Subordinated
Creditor is entitled to receive any payment or distribution of any kind or
character on account of all or any of the Subordinated Indebtedness, and, to
that end, any payment or distribution of any kind or character (whether in cash,
property or securities) that otherwise would be payable or deliverable upon or
with respect to the Subordinated Indebtedness in any such dissolution, winding
up, liquidation, case, proceeding, assignment, marshalling or otherwise
(including, without limitation, any payment that may be payable by reason of any
other Indebtedness of the Payor being subordinated to payment of the
Subordinated Indebtedness) shall be paid or delivered directly to the
Administrative Agent, for its benefit and for the ratable benefit of the
Lenders, for application (in the case of cash) to, or to be held as collateral
(in the case of noncash property and securities) for, the payment or prepayment
of the Senior Indebtedness until all of the Senior Indebtedness shall have been
paid in full.
6. In the event that any Subordinated Indebtedness is declared due
and payable before its stated maturity, if any, the Administrative Agent, for
its benefit and the ratable benefit of the Lenders, shall be entitled to receive
payment in full of all amounts due or to become due on or in respect of all of
the Senior Indebtedness before the Subordinated Creditor is entitled to receive
any payment (including, without limitation, any payment that may be payable by
reason of the payment of any other Indebtedness of the Payor being subordinated
to the payment of the Subordinated Indebtedness) by the Payor on account of the
Subordinated Indebtedness.
7. Until such time as the Senior Indebtedness has been paid in full,
if any proceeding referred to in paragraph 5 above is commenced by or against
the Payor:
(a) the Administrative Agent is hereby irrevocably authorized and
empowered (in its own name or in the name of the Subordinated Creditor or
otherwise), but shall have no obligation, to demand, sue for, collect and
receive every payment or distribution referred to in paragraph 5 above and
give acquittance therefor, and to file claims and proofs of claim and take
such other action as it may deem necessary or advisable for the exercise or
enforcement of any of the rights or interests of the Administrative Agent
or any of the Lenders hereunder; and
(b) the Subordinated Creditor shall duly and promptly take such
action as the Administrative Agent may request (i) to collect the
Subordinated Indebtedness for the account of the Administrative Agent, for
its benefit and the ratable benefit of the Lenders, and to file appropriate
claims or proofs of claim in respect of the Subordinated Indebtedness, (ii)
to execute and deliver to the Administrative Agent such powers of attorney,
assignments or other instruments as the Administrative Agent may request in
order to enable such Administrative Agent to enforce any
<PAGE>
E-iii
and all claims with respect to the Subordinated Indebtedness and (iii) to
collect and receive any and all payments or distributions that may be
payable or deliverable upon or with respect to the Subordinated
Indebtedness.
8. All payments or distributions upon or with respect to the
Subordinated Indebtedness that are received by the Subordinated Creditor
contrary to the provisions of this Agreement shall be received in trust for the
benefit of the Administrative Agent and the Lenders, shall be segregated from
other property or funds of the Subordinated Creditor and shall be forthwith paid
over or delivered directly to the Administrative Agent, for its benefit and the
ratable benefit of the Lenders, in the same form as so received (with any
necessary endorsement or assignment) to be applied (in the case of cash) to, or
to be held as collateral (in the case of noncash property and securities) for,
the payment or prepayment of the Senior Indebtedness in accordance with the
terms of the Credit Agreement and the Notes, until all of the Senior
Indebtedness shall have been paid in full.
9. To the extent that the Company, the Subordinated Creditor or any
of their respective Subsidiaries or any other guarantor of or provider of
collateral for the Senior Indebtedness shall make any payment on the Senior
Indebtedness that is subsequently invalidated, declared to be fraudulent or
preferential or set aside or is required to be repaid to a trustee, receiver or
any other party under any applicable bankruptcy, insolvency or similar law or
equitable cause (any such payment being a "VOIDED PAYMENT"), then to the extent
of such Voided Payment, that portion of the Senior Indebtedness that had been
previously satisfied by such Voided Payment shall be reinstated and continue in
full force and effect as if such Voided Payment had never been made. To the
extent that the Subordinated Creditor shall have received any payments
subsequent to the date of the initial receipt of such Voided Payment by the
Administrative Agent or any Lender and such payments have not been invalidated,
declared to be fraudulent or preferential or set aside or required to be repaid
to a trustee, receiver or any other party under any applicable bankruptcy,
insolvency or similar law or equitable cause, the Subordinated Creditor shall be
obligated and hereby agrees that any such payment so made or received shall be
deemed to have been received in trust for the benefit of the Administrative
Agent and the Lenders, and the Subordinated Creditor hereby agrees to pay to the
Administrative Agent and the Lenders, upon demand, the full amount so received
by the Subordinated Creditor during such period of time to the extent necessary
to fully restore to the Administrative Agent and the Lenders the amount of such
Voided Payment, which amount shall be applied as set forth above in the
paragraph 8.
10. The Administrative Agent is hereby authorized to demand specific
performance of the subordination provisions of this Agreement, whether or not
the Payor shall have complied with any of the provisions hereof applicable to
it, at any time when the Subordinated Creditor shall have failed to comply with
any of the subordination provisions of this Agreement. The Subordinated
Creditor hereby irrevocably waives any defense based on the adequacy of a remedy
at law which might be asserted as a bar to such remedy of specific performance.
11. No payment or distribution to the Administrative Agent or any
Lender pursuant to the provisions of this Agreement shall entitle the
Subordinated Creditor to exercise any rights of subrogation in respect thereof,
nor shall the Subordinated Creditor have any right of reimbursement,
restitution, exoneration, contribution or indemnification whatsoever from any
property or assets of the Payor, the Company or any of the other guarantors,
sureties or providers of collateral security for the Senior Indebtedness, or any
right to participate in any claim or remedy of the Administrative Agent or any
Lender against the Payor or the Company, whether or not such claim, remedy or
right arises in equity or under contract, statute or common law (including,
without limitation, the right to take or receive from the Payor
<PAGE>
E-iv
or the Company, directly or indirectly, in cash or other property or by setoff
or in any other manner, payment or security on account of such claim, remedy or
right), until (i) all of the Senior Indebtedness shall have been paid in full
and all of the commitments shall have expired or been terminated and (ii) the
Revolver Termination Date.
12. The holders of the Senior Indebtedness may, at any time and from
time to time, without any consent of or notice to the Subordinated Creditor or
any other holder of the Subordinated Indebtedness and without impairing or
releasing the obligations of the Subordinated Creditor hereunder:
(a) change the manner, place or terms of payment, or change or extend
the time of payment of, or renew payment or change or extend the time or
payment of, or renew or alter, the Senior Indebtedness (including any
change in the rate of interest thereon), or amend in any manner any
agreement under which any of the Senior Indebtedness is outstanding;
(b) release anyone liable in any manner under or in respect of the
Senior Indebtedness;
(c) exercise or refrain from exercising any rights against the Payor
or any other Person; and
(d) apply to the Senior Indebtedness any sums from time to time
received.
13. The foregoing provisions regarding subordination are and are
intended solely for the purpose of defining the relative rights of the holders
of the Senior Indebtedness, on the one hand, and the holders of the Subordinated
Indebtedness, on the other hand. Such provisions are for the benefit of the
holders of the Senior Indebtedness and shall inure to the benefit of, and shall
be enforceable by, the Administrative Agent, on behalf of itself and the
Lenders, directly against the holders of the Subordinated Indebtedness, and no
holder of the Senior Indebtedness shall be prejudiced in its right to enforce
subordination of any of the Subordinated Indebtedness by any act or failure to
act by the Payor or anyone in custody of its property or assets. Nothing
contained in the foregoing provisions is intended to or shall impair, as between
the Payor and the holders of the Subordinated Indebtedness, the obligations of
the Payor to such holders.
14. The agreement incorporating the foregoing provisions will be
governed by, and construed in accordance with, the laws of the State of New
York.
<PAGE>
Exhibit 10.3
EMPLOYMENT AGREEMENT
--------------------
EMPLOYMENT AGREEMENT dated as of May 1, 1998 between True North
Communications Inc., a Delaware corporation (the "Company"), and Donald L.
Seeley (the "Executive").
WHEREAS, the Company is a global communications holding company with
ownership interests in subsidiaries, affiliates and joint ventures that are
engaged in the advertising agency business, the multimedia production business,
the business of planning and buying of media time and space and related
businesses; and
WHEREAS, the Company and the Executive desire to enter into this
Agreement to provide for the employment of the Executive by the Company upon the
terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the parties hereby agree as follows:
1. Employment. The Company hereby employs the Executive and the
Executive hereby agrees to be employed by the Company upon the terms and subject
to the conditions contained in this Agreement. The initial term of employment of
the Executive by the Company pursuant to this Agreement (the "Initial Term")
shall commence on the date hereof (the "Effective Date") and, unless earlier
terminated, shall end on the third annual anniversary of the Effective Date;
provided that the term of this Agreement shall automatically be extended for
three additional years as of the day immediately following the end of the
Initial Term and as of the day immediately following the end of each subsequent
three-year extended term hereof unless the Company shall have terminated the
automatic extension provisions of this sentence by giving written notice to the
Executive at least 60 days prior to the then applicable termination date. (The
Initial Term and any extension of the term of this Agreement pursuant to this
Section 1 are collectively referred to herein as the "Employment Period.")
2. Position and Duties. The Company shall employ the Executive during
the Employment Period in the position of chief financial officer, with the title
of Executive Vice President and Chief Financial Officer. The Executive shall
report directly to the Company's Chief Executive Officer (the "Company CEO") and
shall be a member of the Management Board of the Company. Subject to the powers,
authority and responsibilities vested in the Board of Directors of the Company
(the "Board"), in duly constituted committees of the Board and in the Company
CEO, the Executive shall have responsibility for the financial affairs of the
Company and the duties and authority normally associated with the position of
chief financial officer. During the Employment Period, the Executive shall
perform faithfully and loyally and to the best of
<PAGE>
the Executive's abilities his duties hereunder, shall devote his full business
time, attention and efforts to the affairs of the Company and shall use his
reasonable best efforts to promote the interests of the Company. Notwithstanding
the foregoing, the Executive may engage in charitable, civic or community
activities, provided that they do not interfere with the performance of the
Executive's duties hereunder and, with the prior approval of the Board, may
serve as a director of any business corporation; provided that such service does
not violate the terms of any of the covenants contained in Section 7 hereof.
3. Compensation.
(a) Annual Base Salary. With respect to the Employment Period, the
Company shall pay to the Executive an annual base salary at the rate of $400,000
per annum in accordance with the Company's regular payroll practices. The
annual base salary shall be reviewed periodically in accordance with guidelines
applicable to the Company's senior executives generally.
(b) Incentive Compensation. During the Employment Period, the
Executive shall be entitled to participate in the Company's Performance Program,
as such Program applies to similarly situated senior executives and as such
Program may be amended from time to time.
(c) Other Benefits. The Executive shall be entitled to participate in
the Directors Part-Time Employment Agreement in accordance with its terms, as
such terms may be amended from time to time. In addition, during the Employment
Period, the Executive shall be entitled to participate in the Company's employee
benefit plans that are generally available to senior executives of the Company
from time to time. The Executive also shall be entitled to (i) an annual
allowance of up to $4,000 for financial planning services, to be provided by
Arthur Andersen LLP or such other financial advisor or advisors as may be
selected by the Executive, (ii) reimbursement for all costs associated with
physical examinations on a bi-annual basis if the Executive has not attained the
age of 45 at the time of any such examination and on an annual basis if the
Executive has attained the age of 45 at the time of any such examination, (iii)
through purchase or lease, an automobile at a value of up to $40,000, or an
annual automobile allowance of approximately $10,750, (iv) reimbursement of
first-class air travel, (v) an annual allowance of $2,000 for charitable
contributions from the Company's foundation budget and (vi) all other fringe
benefits as are from time to time made generally available to senior executives
of the Company. All benefits referred to in this Section 3(c) are hereinafter
referred to as the "Employee Benefits."
(d) Expense Reimbursement. During the Employment Period, the Company
shall reimburse the Executive for all proper
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<PAGE>
expenses incurred by him in the performance of his duties hereunder in
accordance with the Company's policies and procedures.
4. Termination of Employment Period.
(a) Qualifying Termination. For purposes of this Agreement,
"Qualifying Termination" means (i) termination of the Executive's employment by
the Company without Cause (as defined in subsection (b) below), (ii) expiration
of this Agreement at the end of the Initial Term or at the end of any extension
of the term hereof pursuant to a written notice given by the Company to the
Executive in accordance with Section 1 hereof; (iii) termination of the
Executive's employment by the Company on account of the Executive having become
unable (as determined by the Company in good faith) to perform regularly his
duties hereunder by reason of illness or incapacity for a period of more than
six consecutive months (termination for "Disability"), (iv) termination of the
Executive's employment on account of the Executive's death, or (v) termination
of the Executive's employment by the Executive due to the occurrence, without
the Executive's express written consent, of any of the following events: (1)
the assignment to the Executive of any duties that either (A) are inconsistent
in any material respect with the Executive's position, duties, responsibilities
or status with the Company at the date of this Agreement (or subsequent hereto
if such new position(s), duties, responsibilities or status are agreed to by the
Executive) or (B) result in a material diminution of the Executive's
responsibilities, (2) a material adverse change in the Executive's reporting
responsibilities, titles or offices with the Company, (3) a material breach of
the Company's obligations set forth in this Agreement, (4) a material decrease
in the Executive's base salary, or (5) any requirement of the Company that the
location where the Executive is based be materially changed.
In addition, upon a change in the Company CEO, the Executive and the new Company
CEO shall endeavor to agree mutually upon the Executive's continued role with
the Company. If the Executive and the new Company CEO cannot mutually agree
upon the Executive's continued role with the Company and the Executive's
employment with the Company is thereby terminated by either party, such
termination shall be deemed a Qualifying Termination.
For purposes of this Agreement, an isolated, insubstantial and inadvertent
action taken by the Company in good faith and which is remedied by the Company
promptly (the later of 60 days or as soon as reasonably practicable) after
receipt of written notice thereof given by the Executive shall not constitute a
basis for a Qualifying Termination.
(b) Definition of Cause. For purposes of this Agreement, "Cause"
means (i) a material breach by the Executive of the duties and responsibilities
of the Executive hereunder (other than as a result of incapacity due to physical
or mental illness),
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<PAGE>
which is not remedied within 30 days (or sooner, as specified in a written
notice, if the Company, in its good faith judgment, determines that the period
must be shorter to avoid harm to the Company) after receipt of written notice
from the Company specifying such breach, (ii) the willful engaging by the
Executive in conduct that is demonstrably and materially injurious to the
business, reputation, character or community standing of the Company, (iii) the
willful and continued failure of the Executive to perform substantially his
duties under the Agreement, which failure is not remedied within 60 days (or
sooner, as specified in a written notice, if the Company, in its good faith
judgment, determines that the period must be shorter to avoid harm to the
Company) after receipt of written notice from the Company specifying such
failure, or (iv) the engaging by the Executive in dishonest, fraudulent or
unethical conduct or in other egregious conduct involving serious moral
turpitude to the extent that in the reasonable judgment of the Board, the
Executive's reputation and credibility no longer conform to the standards
expected of the Company's executives.
5. Consequences of Termination of Employment Period.
(a) Benefits Upon Termination. If the Employment Period terminates
for any reason, the Executive (or the Executive's executor, administrator or
other legal representative, as the case may be) shall be entitled to receive the
following benefits:
(i) within 30 days after the amount in question is reasonably
determinable (1) salary payable through the date of termination of
employment, (2) unpaid variable incentive compensation ("VIC") and not yet
granted variable incentive stock options ("VISO") for the calendar year
immediately preceding the date of such termination, and (3) reimbursement
of proper expenses incurred through the date of such termination;
(ii) the vested portion of the amounts in the Executive's deferred
variable incentive compensation ("DVIC") account, such payments to be made
in accordance with the terms of the Executive's DVIC agreement; and
(iii) subject to and in accordance with the then existing terms of the
Company's Earnings Performance Plan, payment of previously-granted earnings
performance units, if any; and
(iv) participation (by the Executive or the Executive's qualified
dependents, as the case may be) in all other applicable benefit plans or
programs in accordance with the provisions thereof applicable to terminated
employees (or their qualified dependents, as the case may be).
(b) Additional Benefits Upon Qualifying Termination. If the
Employment Period terminates for a reason set forth in Section
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<PAGE>
4(a), the Executive (or the Executive's executor, administrator or other legal
representative, as the case may be) shall be entitled to receive the following
additional benefits:
(i) within 30 days after the amount in question is reasonably
determinable, VIC and VISO for the calendar year in which such termination
shall have occurred, prorated through the date of such termination based on
actual results of operations for such full calendar year;
(ii) all vested and unvested amounts, if any, including all credited
interest, in the Executive's DVIC account (such payments shall be made
under the terms of the Executive's DVIC agreement; provided that, if the
Qualifying Termination is for any reason other than death or Disability,
such payments shall commence at the conclusion of the Severance Period);
(iii) if the Qualifying Termination is for any reason other than death
or Disability:
(1) each stock option granted to the Executive by the Company then
held by the Executive shall on the date of such termination be
100% vested;
(2) for a period of three years commencing on the day immediately
following the date of termination of the employment of the
Executive (the "Severance Period"), the Executive shall be
entitled to receive (A) salary, at the rate payable on the date
of such termination, payable in accordance with the Company's
normal payroll policies and (B) within 30 days after the amount
in question is reasonably determinable, VIC and VISO at the
higher of (x) the rate payable to the Executive for the calendar
year in which such termination shall have occurred or (y) the
average of the rates payable to the Executive for the three
calendar years (or if the Executive shall have been employed by
the Company for fewer than three calendar years, for such lesser
number of calendar years) immediately preceding the year in which
such termination shall have occurred;
(3) during the Severance Period, the Executive shall be entitled to
participate in life insurance, medical and dental benefits and
other Employee Benefits on terms no less favorable than on the
termination date, subject to modifications of general application
to all similarly situated employees; and
(4) immediately following the expiration of the Severance Period, the
Executive shall be entitled
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<PAGE>
to compensation and benefits payable under the Directors Part-
Time Employment Agreement, with all age and service requirements
deemed to have been satisfied (service credit under the Directors
Part-Time Employment Agreement shall be calculated as if the
Executive were a director of the Company and shall include the
Severance Period); and
(iv) provided that this Section 5(b)(iv) does not conflict with the
terms of the stock option grant, each stock option granted to the Executive
by the Company then held by the Executive shall be exercisable to the
extent it is vested at the date of termination by the Executive or the
Executive's executor, administrator or other legal representative, as the
case may be, for up to three years after the date of termination, but in no
case beyond a date 10 years following the date of grant of such option.
(c) Termination after a Change in Control. If the Company's Asset
Protection Plan is in full force and effect on terms at least as favorable to
the Executive as in effect on the date hereof, then (i) in the event of a
Qualifying Termination, as defined in the Company's Asset Protection Plan, the
Executive shall be entitled to payments in accordance with the Company's Asset
Protection Plan, and (ii) the Asset Protection Plan shall supersede this
Agreement, and no payments shall be made under this Agreement, if termination
occurs after a Change in Control, as defined in the Company's Asset Protection
Plan, and payments are made pursuant to the terms of the Asset Protection Plan;
it being expressly understood, however, that the Executive's rights independent
of this Agreement under the applicable components of the Company's Performance
Program and under stock options held by the Executive shall not be affected.
6. Federal and State Withholding. The Company shall deduct from the
amounts payable to the Executive pursuant to this Agreement the amount of all
required federal and state withholding taxes in accordance with the Executive's
Form W-4 on file with the Company and all applicable social security and
Medicare taxes.
7. Noncompetition; Nonsolicitation; Confidentiality.
(a) Covenant Not to Compete. Except with the prior written consent of
the Board:
(i) during the Employment Period, the Executive shall not engage in
any activities, whether as employer, proprietor, partner, stockholder
(other than the holder of less than 5% of the stock of a corporation the
securities of which are traded on a national securities exchange or in the
over-the-counter market), director, officer, employee or otherwise, in
competition with (1) the businesses conducted at the date hereof by the
Company or (2) any business in which the Company
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<PAGE>
is substantially engaged at any time during the Employment Period;
(ii) during the Employment Period, during the Severance Period and
during any time the Executive is receiving payments under the Company's
Directors Part-Time Employment Agreement, the Executive shall not solicit,
directly or indirectly, any existing business relationship of clients of
the Company existing at the end of the Employment Period in which the
Company is substantially engaged at any time during the Employment Period,
the Severance Period or the period during which the Executive is receiving
payments under the Directors Part-Time Employment Agreement; and
(iii) during the Employment Period, during the Severance Period and
during any time the Executive is receiving payments under the Company's
Directors Part-Time Employment Agreement, the Executive shall not induce or
attempt to persuade any employee of the Company to terminate the employee's
employment relationship with the Company.
(b) Confidential Information and Trade Secrets. The Executive shall
not, at any time during the Employment Period or thereafter, make use of any
bidding information (or computer programs thereof) of the Company, nor divulge
any trade secrets or other confidential information of the Company, except to
the extent that such information becomes a matter of public record, is published
in a newspaper, magazine or other periodical available to the general public or
as the Company may so authorize in writing; and when the Executive shall cease
to be employed by the Company, the Executive shall surrender to the Company all
records and other documents obtained by him or entrusted to him during the
course of his employment hereunder (together with all copies thereof) which
pertain specifically to any of the businesses covered by the covenants in
Section 7(a)(i) or which were paid for by the Company; provided, however, that
the Executive may retain copies of such documents as necessary for the
Executive's personal records for federal income tax purposes.
(c) Scope of Covenants; Remedies. The following provisions shall
apply to the covenants of the Executive contained in this Section:
(i) the covenants set forth in Sections 7(a)(i) and 7(a)(ii) shall
apply within all territories in which the Company is actively engaged in
the conduct of business during the Employment Period, including, without
limitation, the territories in which customers are then being solicited;
(ii) without limiting the right of the Company to pursue all other
legal and equitable remedies available for violation by the Executive of
the covenants contained in Sections 7(a) and 7(b), including the cessation
and recovery of payments and
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benefits paid and provided under this Agreement, it is expressly agreed
that such other remedies cannot fully compensate the Company for any such
violation and that the Company shall be entitled to injunctive relief to
prevent any such violation or any continuing violation thereof;
(iii) each party intends and agrees that if in any action before any
court or agency legally empowered to enforce the covenants contained in
Sections 7(a) and 7(b) any term, restriction, covenant or promise contained
therein is found to be unreasonable and accordingly unenforceable, then
such term, restriction, covenant or promise shall be deemed modified to the
extent necessary to make it enforceable by such court or agency; and
(iv) the covenants contained in Sections 7(a) and 7(b) shall survive
the conclusion of the Executive's employment by the Company.
8. Nondisparagement; Cooperation. (a) The Executive shall not, at
any time during the Employment Period or the Severance Period or the duration of
the Company's Directors Part-Time Employment Agreement or thereafter, make any
statement, publicly or privately, which would disparage the Company, any of its
businesses or any director or officer of the Company or such businesses or would
have a deleterious effect upon the interests of the Company or such businesses
or the stockholders or other owners of any of them; provided, however, that the
Executive shall not be in breach of this restriction if such statements consist
solely of (i) private statements made to any officers, directors or employees of
the Company by the Executive in the course of carrying out his duties pursuant
to this Agreement or, to the extent applicable, his duties as a director or
officer of the Company or (ii) private statements made to persons other than
clients or competitors of the Company (or their representatives) or members of
the press or the financial community that do not have a material adverse effect
upon the Company; and provided further that nothing contained in this Section
8(a) or in any other provision of this Agreement shall preclude the Executive
from making any statement in good faith which is required by law, regulation or
order of any court or regulatory commission, department or agency.
(b) The Company shall not, at any time during the Employment Period or
the Severance Period or the duration of the Company's Directors Part-Time
Employment Agreement or thereafter, authorize any person to make or allow, nor
shall the Company condone the making of, any statement, publicly or privately,
which would disparage the Executive; provided, however, that the Company shall
not be in breach of this restriction if such statements consist solely of (i)
private statements made to any officers, directors or employees of the Company
or (ii) private statements made to persons other than clients or competitors of
the Company (or their representatives) or members of the press or the financial
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community that do not have a material adverse effect upon the Executive; and
provided further that nothing contained in this Section 8(b) or in any other
provision of this Agreement shall preclude any officer, director, employee,
agent or other representative of the Company from making any statement in good
faith which is required by any law, regulation or order of any court or
regulatory commission, department or agency.
9. Enforcement. The parties hereto agree that the Company would be
damaged irreparably in the event that any provision of Section 7 or 8 of this
Agreement were not performed in accordance with its terms or were otherwise
breached and that money damages would be an inadequate remedy for any such
nonperformance or breach. Accordingly, the Company and its successors or
permitted assigns shall be entitled, in addition to other rights and remedies
existing in their favor, to an injunction or injunctions to prevent any breach
or threatened breach of any of such provisions and to enforce such provisions
specifically (without posting a bond or other security). Each of the parties
agrees that he or it will submit himself or itself to the personal jurisdiction
of the courts of the State of Illinois in any action by the other party to
enforce an arbitration award against him or it or to obtain interim injunctive
or other relief pending an arbitration decision.
10. Survival. Sections 7, 8 and 9 of this Agreement shall survive
and continue in full force and effect in accordance with their respective terms,
notwithstanding any termination of the Employment Period.
11. Arbitration; Certain Costs. Any dispute or controversy between
the Company and the Executive, whether arising out of or relating to this
Agreement, the breach of this Agreement, or otherwise, shall be settled by
arbitration administered by the American Arbitration Association in accordance
with its Commercial Rules then in effect and judgment on the award rendered by
the arbitrator may be entered in any court having jurisdiction thereof. The
arbitrator shall have the authority to award any remedy or relief that a court
of competent jurisdiction could order or grant, including, without limitation,
the issuance of an injunction. However, either party may, without inconsistency
with this arbitration provision, apply to any court having jurisdiction over
such dispute or controversy and seek interim provisional, injunctive or other
equitable relief until the arbitration award is rendered or the controversy is
otherwise resolved. Except as necessary in court proceedings to enforce this
arbitration provision or an award rendered hereunder, or to obtain interim
relief, neither a party nor an arbitrator may disclose the existence, content or
results of any arbitration hereunder without the prior written consent of the
Company and the Executive. The Company and the Executive acknowledge that this
Agreement evidences a transaction involving interstate commerce.
Notwithstanding any choice of law provision included in this Agreement, the
United
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States Federal Arbitration Act shall govern the interpretation and enforcement
of this arbitration provision.
12. Notice. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed to have been duly
given when personally delivered or five days after deposit in the United States
mail, certified and return receipt requested, postage prepaid, addressed (a) if
to the Executive, to the most recent address then shown on the employment
records of the Company, and if to the Company, to True North Communications
Inc., 101 East Erie Street, Chicago, Illinois 60611-2897, Attention: Secretary,
or (b) to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
13. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is determined to be
invalid, illegal or unenforceable in any respect under applicable law or rule in
any jurisdiction, such invalidity, illegality or unenforceability shall not
affect the validity, legality or enforceability of any other provision of this
Agreement or the validity, legality or enforceability of such provision in any
other jurisdiction, but this Agreement shall be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
14. Entire Agreement. This Agreement constitutes the entire
agreement and understanding between the parties with respect to the subject
matter hereof and supersedes and preempts any prior understandings, agreements
or representations by or between the parties, written or oral, which may have
related in any manner to the subject matter hereof.
15. Successors and Assigns. This Agreement shall be enforceable by
the Executive and the Executive's heirs, executors, administrators and legal
representatives, and by the Company and its successors and permitted assigns.
Any successor or permitted assign of the Company shall assume by instrument
delivered to the Executive the liabilities of the Company hereunder. This
Agreement shall not be assigned by the Company other than to a successor
pursuant to a merger, consolidation or transfer of all or substantially all of
the capital stock or assets of the Company.
16. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the internal laws of the State of Illinois
without regard to principles of conflict of laws.
17. Amendment and Waiver. The provisions of this Agreement may be
amended or waived only by the written agreement of
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the Company and the Executive, and no course of conduct or failure or delay in
enforcing the provisions of this Agreement shall affect the validity, binding
effect or enforceability of this Agreement.
18. Counterparts. This Agreement may be executed in two
counterparts, each of which shall be deemed to be an original and both of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
TRUE NORTH COMMUNICATIONS INC.
/s/ Bruce Mason
By:_____________________________________
Bruce Mason,
Chief Executive Officer
/s/ Richard P. Mayer
By:_____________________________________
Richard P. Mayer,
Chairman of the Compensation
Committee of the Board of Directors
EXECUTIVE:
/s/ Donald L. Seeley
________________________________________
Donald L. Seeley
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Exhibit 10.4
EMPLOYMENT AGREEMENT
--------------------
EMPLOYMENT AGREEMENT dated as of May 1, 1998 between True North
Communications Inc., a Delaware corporation (the "Company"), and Theodore J.
Theophilos (the "Executive").
WHEREAS, the Company is a global communications holding company with
ownership interests in subsidiaries, affiliates and joint ventures that are
engaged in the advertising agency business, the multimedia production business,
the business of planning and buying of media time and space and related
businesses; and
WHEREAS, the Company and the Executive desire to enter into this
Agreement to provide for the employment of the Executive by the Company upon the
terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the parties hereby agree as follows:
1. Employment. The Company hereby employs the Executive and the
Executive hereby agrees to be employed by the Company upon the terms and subject
to the conditions contained in this Agreement. The initial term of employment
of the Executive by the Company pursuant to this Agreement (the "Initial Term")
shall commence on the date hereof (the "Effective Date") and, unless earlier
terminated, shall end on the third annual anniversary of the Effective Date;
provided that the term of this Agreement shall automatically be extended for
three additional years as of the day immediately following the end of the
Initial Term and as of the day immediately following the end of each subsequent
three-year extended term hereof unless the Company shall have terminated the
automatic extension provisions of this sentence by giving written notice to the
Executive at least 60 days prior to the then applicable termination date. (The
Initial Term and any extension of the term of this Agreement pursuant to this
Section 1 are collectively referred to herein as the "Employment Period.")
2. Position and Duties. The Company shall employ the Executive
during the Employment Period in the position of Executive Vice President of
Corporate Development and Business Affairs of the Company. The Executive shall
report directly to the Company's Chief Executive Officer (the "Company CEO") and
shall be a member of the Management Board of the Company. Subject to the
powers, authority and responsibilities vested in the Board of Directors of the
Company (the "Board"), in duly constituted committees of the Board and in the
Company CEO, the Executive shall have responsibility for the Corporate
Development function for the Company, including any and all mergers,
acquisitions and other business combinations. In addition, the Executive will
be
<PAGE>
responsible for the global legal matters pertaining to the Company, the
Board, all committees of the Board and all subsidiaries and affiliates of the
Company. In accordance with the general practices of a general counsel of a
publicly-traded company, the Executive will be responsible for all matters
pertaining to the Company's compliance with Securities and Exchange Commission,
New York Stock Exchange and other governmental laws and regulations. The
Executive will have responsibility for the hiring, retention and supervision of
the in-house legal staff of the Company. The Executive will be responsible for
and make relevant determinations concerning the retention, hiring and
supervision of outside counsel for the Company, the Board, all committees of the
Board and all subsidiaries and affiliates of the Company. In accordance with
corporate policy, the Executive will approve all payments for legal fees and
charges at limits prescribed by the Company's management. During the Employment
Period, the Executive shall perform faithfully and loyally and to the best of
the Executive's abilities his duties hereunder, shall devote his full business
time, attention and efforts to the affairs of the Company and shall use his
reasonable best efforts to promote the interests of the Company.
Notwithstanding the foregoing, the Executive may engage in charitable, civic or
community activities, provided that they do not interfere with the performance
of the Executive's duties hereunder and, with the prior approval of the Board,
may serve as a director of any business corporation; provided that such service
does not violate the terms of any of the covenants contained in Section 7
hereof.
3. Compensation.
(a) Annual Base Salary. With respect to the Employment Period, the
Company shall pay to the Executive an annual base salary at the rate of $400,000
per annum in accordance with the Company's regular payroll practices. The
annual base salary shall be reviewed periodically in accordance with guidelines
applicable to the Company's senior executives generally.
(b) Incentive Compensation. During the Employment Period, the
Executive shall be entitled to participate in the Company's Performance Program,
as such Program applies to similarly situated senior executives and as such
Program may be amended from time to time.
(c) Other Benefits. The Executive shall be entitled to participate in
the Directors Part-Time Employment Agreement in accordance with its terms, as
such terms may be amended from time to time. In addition, during the Employment
Period, the Executive shall be entitled to participate in the Company's employee
benefit plans that are generally available to senior executives of the Company
from time to time. The Executive also shall be entitled to (i) an annual
allowance of up to $4,000 for financial planning services, to be provided by
Arthur Andersen LLP or such other financial advisor or advisors as may be
selected by the Executive,
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(ii) reimbursement for all costs associated with physical examinations on a bi-
annual basis if the Executive has not attained the age of 45 at the time of any
such examination and on an annual basis if the Executive has attained the age of
45 at the time of any such examination, (iii) through purchase or lease, an
automobile at a value of up to $40,000, or an annual allowance of approximately
$9,000, (iv) reimbursement of first-class air travel, (v) an annual allowance of
$2,000 for charitable contributions from the Company's foundation budget and
(vi) all other fringe benefits as are from time to time made generally available
to senior executives of the Company. All benefits referred to in this Section
3(c) are hereinafter referred to as the "Employee Benefits."
(d) Expense Reimbursement. During the Employment Period, the Company
shall reimburse the Executive for all proper expenses incurred by him in the
performance of his duties hereunder in accordance with the Company's policies
and procedures.
4. Termination of Employment Period.
(a) Qualifying Termination. For purposes of this Agreement,
"Qualifying Termination" means (i) termination of the Executive's employment by
the Company without Cause (as defined in subsection (b) below), (ii) expiration
of this Agreement at the end of the Initial Term or at the end of any extension
of the term hereof pursuant to a written notice given by the Company to the
Executive in accordance with Section 1 hereof; (iii) termination of the
Executive's employment by the Company on account of the Executive having become
unable (as determined by the Company in good faith) to perform regularly his
duties hereunder by reason of illness or incapacity for a period of more than
six consecutive months (termination for "Disability"), (iv) termination of the
Executive's employment on account of the Executive's death, or (v) termination
of the Executive's employment by the Executive due to the occurrence, without
the Executive's express written consent, of any of the following events: (1)
the assignment to the Executive of any duties that either (A) are inconsistent
in any material respect with the Executive's position, duties, responsibilities
or status with the Company at the date of this Agreement (or subsequent hereto
if such new position(s), duties, responsibilities or status are agreed to by the
Executive) or (B) result in a material diminution of the Executive's
responsibilities, (2) a material adverse change in the Executive's reporting
responsibilities, titles or offices with the Company, (3) a material breach of
the Company's obligations set forth in this Agreement, (4) a material decrease
in the Executive's base salary, or (5) any requirement of the Company that the
location where the Executive is based be materially changed.
In addition, upon a change in the Company CEO, the Executive and the new Company
CEO shall endeavor to agree mutually upon the Executive's continued role with
the Company. If the Executive and
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the new Company CEO cannot mutually agree upon the Executive's continued role
with the Company and the Executive's employment with the Company is thereby
terminated by either party, such termination shall be deemed a Qualifying
Termination.
For purposes of this Agreement, an isolated, insubstantial and inadvertent
action taken by the Company in good faith and which is remedied by the Company
promptly (the later of 60 days or as soon as reasonably practicable) after
receipt of written notice thereof given by the Executive shall not constitute a
basis for a Qualifying Termination.
(b) Definition of Cause. For purposes of this Agreement, "Cause"
means (i) a material breach by the Executive of the duties and responsibilities
of the Executive hereunder (other than as a result of incapacity due to physical
or mental illness), which is not remedied within 30 days (or sooner, as
specified in a written notice, if the Company, in its good faith judgment,
determines that the period must be shorter to avoid harm to the Company) after
receipt of written notice from the Company specifying such breach, (ii) the
willful engaging by the Executive in conduct that is demonstrably and materially
injurious to the business, reputation, character or community standing of the
Company, (iii) the willful and continued failure of the Executive to perform
substantially his duties under the Agreement, which failure is not remedied
within 60 days (or sooner, as specified in a written notice, if the Company, in
its good faith judgment, determines that the period must be shorter to avoid
harm to the Company) after receipt of written notice from the Company specifying
such failure, or (iv) the engaging by the Executive in dishonest, fraudulent or
unethical conduct or in other egregious conduct involving serious moral
turpitude to the extent that in the reasonable judgment of the Board, the
Executive's reputation and credibility no longer conform to the standards
expected of the Company's executives.
5. Consequences of Termination of Employment Period.
(a) Benefits Upon Termination. If the Employment Period terminates
for any reason, the Executive (or the Executive's executor, administrator or
other legal representative, as the case may be) shall be entitled to receive the
following benefits:
(i) within 30 days after the amount in question is reasonably
determinable (1) salary payable through the date of termination of
employment, (2) unpaid variable incentive compensation ("VIC") and not yet
granted variable incentive stock options ("VISO") for the calendar year
immediately preceding the date of such termination, and (3) reimbursement
of proper expenses incurred through the date of such termination;
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(ii) the vested portion of the amounts in the Executive's deferred
variable incentive compensation ("DVIC") account, such payments to be made
in accordance with the terms of the Executive's DVIC agreement; and
(iii) subject to and in accordance with the then existing terms of the
Company's Earnings Performance Plan, payment of previously-granted earnings
performance units, if any; and
(iv) participation (by the Executive or the Executive's qualified
dependents, as the case may be) in all other applicable benefit plans or
programs in accordance with the provisions thereof applicable to terminated
employees (or their qualified dependents, as the case may be).
(b) Additional Benefits Upon Qualifying Termination. If the
Employment Period terminates for a reason set forth in Section 4(a), the
Executive (or the Executive's executor, administrator or other legal
representative, as the case may be) shall be entitled to receive the following
additional benefits:
(i) within 30 days after the amount in question is reasonably
determinable, VIC and VISO for the calendar year in which such termination
shall have occurred, prorated through the date of such termination based on
actual results of operations for such full calendar year;
(ii) all vested and unvested amounts, if any, including all credited
interest, in the Executive's DVIC account (such payments shall be made
under the terms of the Executive's DVIC agreement; provided that, if the
Qualifying Termination is for any reason other than death or Disability,
such payments shall commence at the conclusion of the Severance Period);
(iii) if the Qualifying Termination is for any reason other than death
or Disability:
(1) each stock option granted to the Executive by the Company then
held by the Executive shall on the date of such termination be
100% vested;
(2) for a period of three years commencing on the day immediately
following the date of termination of the employment of the
Executive (the "Severance Period"), the Executive shall be
entitled to receive (A) salary, at the rate payable on the date
of such termination, payable in accordance with the Company's
normal payroll policies and (B) within 30 days after the amount
in question is reasonably determinable, VIC and VISO at the
higher of (x) the rate payable to the Executive for the calendar
year in which such termination shall have occurred or (y) the
average of the rates payable to the
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Executive for the three calendar years (or if the Executive shall
have been employed by the Company for fewer than three calendar
years, for such lesser number of calendar years) immediately
preceding the year in which such termination shall have occurred;
(3) during the Severance Period, the Executive shall be entitled to
participate in life insurance, medical and dental benefits and
other Employee Benefits on terms no less favorable than on the
termination date, subject to modifications of general application
to all similarly situated employees; and
(4) immediately following the expiration of the Severance Period, the
Executive shall be entitled to compensation and benefits payable
under the Directors Part-Time Employment Agreement, with all age
and service requirements deemed to have been satisfied (service
credit under the Directors Part-Time Employment Agreement shall
be calculated as if the Executive were a director of the Company
and shall include the Severance Period); and
(iv) provided that this Section 5(b)(iv) does not conflict with the
terms of the stock option grant, each stock option granted to the Executive
by the Company then held by the Executive shall be exercisable to the
extent it is vested at the date of termination by the Executive or the
Executive's executor, administrator or other legal representative, as the
case may be, for up to three years after the date of termination, but in no
case beyond a date 10 years following the date of grant of such option.
(c) Termination after a Change in Control. If the Company's Asset
Protection Plan is in full force and effect on terms at least as favorable to
the Executive as in effect on the date hereof, then (i) in the event of a
Qualifying Termination, as defined in the Company's Asset Protection Plan, the
Executive shall be entitled to payments in accordance with the Company's Asset
Protection Plan, and (ii) the Asset Protection Plan shall supersede this
Agreement, and no payments shall be made under this Agreement, if termination
occurs after a Change in Control, as defined in the Company's Asset Protection
Plan, and payments are made pursuant to the terms of the Asset Protection Plan;
it being expressly understood, however, that the Executive's rights independent
of this Agreement under the applicable components of the Company's Performance
Program and under stock options held by the Executive shall not be affected.
6. Federal and State Withholding. The Company shall deduct from the
amounts payable to the Executive pursuant to this
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Agreement the amount of all required federal and state withholding taxes in
accordance with the Executive's Form W-4 on file with the Company and all
applicable social security and Medicare taxes.
7. Noncompetition; Nonsolicitation; Confidentiality.
------------------------------------------------
(a) Covenant Not to Compete. Except with the prior written consent of
the Board:
(i) during the Employment Period, the Executive shall not engage in
any activities, whether as employer, proprietor, partner, stockholder
(other than the holder of less than 5% of the stock of a corporation the
securities of which are traded on a national securities exchange or in the
over-the-counter market), director, officer, employee or otherwise, in
competition with (1) the businesses conducted at the date hereof by the
Company or (2) any business in which the Company is substantially engaged
at any time during the Employment Period;
(ii) during the Employment Period, during the Severance Period and
during any time the Executive is receiving payments under the Company's
Directors Part-Time Employment Agreement, the Executive shall not solicit,
directly or indirectly, any existing business relationship of clients of
the Company existing at the end of the Employment Period in which the
Company is substantially engaged at any time during the Employment Period,
the Severance Period or the period during which the Executive is receiving
payments under the Directors Part-Time Employment Agreement; and
(iii) during the Employment Period, during the Severance Period and
during any time the Executive is receiving payments under the Company's
Directors Part-Time Employment Agreement, the Executive shall not induce or
attempt to persuade any employee of the Company to terminate the employee's
employment relationship with the Company.
(b) Confidential Information and Trade Secrets. The Executive shall
not, at any time during the Employment Period or thereafter, make use of any
bidding information (or computer programs thereof) of the Company, nor divulge
any trade secrets or other confidential information of the Company, except to
the extent that such information becomes a matter of public record, is published
in a newspaper, magazine or other periodical available to the general public or
as the Company may so authorize in writing; and when the Executive shall cease
to be employed by the Company, the Executive shall surrender to the Company all
records and other documents obtained by him or entrusted to him during the
course of his employment hereunder (together with all copies thereof) which
pertain specifically to any of the businesses covered by the covenants in
Section 7(a)(i) or which were paid for by the Company; provided, however, that
the Executive may retain copies of such
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documents as necessary for the Executive's personal records for federal income
tax purposes.
(c) Scope of Covenants; Remedies. The following provisions shall
apply to the covenants of the Executive contained in this Section:
(i) the covenants set forth in Sections 7(a)(i) and 7(a)(ii) shall
apply within all territories in which the Company is actively engaged in
the conduct of business during the Employment Period, including, without
limitation, the territories in which customers are then being solicited;
(ii) without limiting the right of the Company to pursue all other
legal and equitable remedies available for violation by the Executive of
the covenants contained in Sections 7(a) and 7(b), including the cessation
and recovery of payments and benefits paid and provided under this
Agreement, it is expressly agreed that such other remedies cannot fully
compensate the Company for any such violation and that the Company shall be
entitled to injunctive relief to prevent any such violation or any
continuing violation thereof;
(iii) each party intends and agrees that if in any action before any
court or agency legally empowered to enforce the covenants contained in
Sections 7(a) and 7(b) any term, restriction, covenant or promise contained
therein is found to be unreasonable and accordingly unenforceable, then
such term, restriction, covenant or promise shall be deemed modified to the
extent necessary to make it enforceable by such court or agency; and
(iv) the covenants contained in Sections 7(a) and 7(b) shall survive
the conclusion of the Executive's employment by the Company.
8. Nondisparagement; Cooperation. (a) The Executive shall not, at
any time during the Employment Period or the Severance Period or the duration of
the Company's Directors Part-Time Employment Agreement or thereafter, make any
statement, publicly or privately, which would disparage the Company, any of its
businesses or any director or officer of the Company or such businesses or would
have a deleterious effect upon the interests of the Company or such businesses
or the stockholders or other owners of any of them; provided, however, that the
Executive shall not be in breach of this restriction if such statements consist
solely of (i) private statements made to any officers, directors or employees of
the Company by the Executive in the course of carrying out his duties pursuant
to this Agreement or, to the extent applicable, his duties as a director or
officer of the Company or (ii) private statements made to persons other than
clients or competitors of the Company (or their representatives) or members of
the press or the financial community that do not have a material adverse effect
upon
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the Company; and provided further that nothing contained in this Section
8(a) or in any other provision of this Agreement shall preclude the Executive
from making any statement in good faith which is required by law, regulation or
order of any court or regulatory commission, department or agency.
(b) The Company shall not, at any time during the Employment Period or
the Severance Period or the duration of the Company's Directors Part-Time
Employment Agreement or thereafter, authorize any person to make or allow, nor
shall the Company condone the making of, any statement, publicly or privately,
which would disparage the Executive; provided, however, that the Company shall
not be in breach of this restriction if such statements consist solely of (i)
private statements made to any officers, directors or employees of the Company
or (ii) private statements made to persons other than clients or competitors of
the Company (or their representatives) or members of the press or the financial
community that do not have a material adverse effect upon the Executive; and
provided further that nothing contained in this Section 8(b) or in any other
provision of this Agreement shall preclude any officer, director, employee,
agent or other representative of the Company from making any statement in good
faith which is required by any law, regulation or order of any court or
regulatory commission, department or agency.
9. Enforcement. The parties hereto agree that the Company would be
damaged irreparably in the event that any provision of Section 7 or 8 of this
Agreement were not performed in accordance with its terms or were otherwise
breached and that money damages would be an inadequate remedy for any such
nonperformance or breach. Accordingly, the Company and its successors or
permitted assigns shall be entitled, in addition to other rights and remedies
existing in their favor, to an injunction or injunctions to prevent any breach
or threatened breach of any of such provisions and to enforce such provisions
specifically (without posting a bond or other security). Each of the parties
agrees that he or it will submit himself or itself to the personal jurisdiction
of the courts of the State of Illinois in any action by the other party to
enforce an arbitration award against him or it or to obtain interim injunctive
or other relief pending an arbitration decision.
10. Survival. Sections 7, 8 and 9 of this Agreement shall survive
and continue in full force and effect in accordance with their respective terms,
notwithstanding any termination of the Employment Period.
11. Arbitration; Certain Costs. Any dispute or controversy between
the Company and the Executive, whether arising out of or relating to this
Agreement, the breach of this Agreement, or otherwise, shall be settled by
arbitration administered by the American Arbitration Association in accordance
with its Commercial Rules then in effect and judgment on the award rendered by
the
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arbitrator may be entered in any court having jurisdiction thereof. The
arbitrator shall have the authority to award any remedy or relief that a court
of competent jurisdiction could order or grant, including, without limitation,
the issuance of an injunction. However, either party may, without inconsistency
with this arbitration provision, apply to any court having jurisdiction over
such dispute or controversy and seek interim provisional, injunctive or other
equitable relief until the arbitration award is rendered or the controversy is
otherwise resolved. Except as necessary in court proceedings to enforce this
arbitration provision or an award rendered hereunder, or to obtain interim
relief, neither a party nor an arbitrator may disclose the existence, content or
results of any arbitration hereunder without the prior written consent of the
Company and the Executive. The Company and the Executive acknowledge that this
Agreement evidences a transaction involving interstate commerce.
Notwithstanding any choice of law provision included in this Agreement, the
United States Federal Arbitration Act shall govern the interpretation and
enforcement of this arbitration provision.
12. Notice. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed to have been duly
given when personally delivered or five days after deposit in the United States
mail, certified and return receipt requested, postage prepaid, addressed (a) if
to the Executive, to the most recent address then shown on the employment
records of the Company, and if to the Company, to True North Communications
Inc., 101 East Erie Street, Chicago, Illinois 60611-2897, Attention: Secretary,
or (b) to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
13. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is determined to be
invalid, illegal or unenforceable in any respect under applicable law or rule in
any jurisdiction, such invalidity, illegality or unenforceability shall not
affect the validity, legality or enforceability of any other provision of this
Agreement or the validity, legality or enforceability of such provision in any
other jurisdiction, but this Agreement shall be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
14. Entire Agreement. This Agreement constitutes the entire
agreement and understanding between the parties with respect to the subject
matter hereof and supersedes and preempts any prior understandings, agreements
or representations by or between the parties, written or oral, which may have
related in any manner to the subject matter hereof.
-10-
<PAGE>
15. Successors and Assigns. This Agreement shall be enforceable by
the Executive and the Executive's heirs, executors, administrators and legal
representatives, and by the Company and its successors and permitted assigns.
Any successor or permitted assign of the Company shall assume by instrument
delivered to the Executive the liabilities of the Company hereunder. This
Agreement shall not be assigned by the Company other than to a successor
pursuant to a merger, consolidation or transfer of all or substantially all of
the capital stock or assets of the Company.
16. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the internal laws of the State of Illinois
without regard to principles of conflict of laws.
17. Amendment and Waiver. The provisions of this Agreement may be
amended or waived only by the written agreement of the Company and the
Executive, and no course of conduct or failure or delay in enforcing the
provisions of this Agreement shall affect the validity, binding effect or
enforceability of this Agreement.
18. Counterparts. This Agreement may be executed in two
counterparts, each of which shall be deemed to be an original and both of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
TRUE NORTH COMMUNICATIONS INC.
By: /s/ Bruce Mason,
--------------------------------------
Bruce Mason,
Chief Executive Officer
By: /s/ Richard P. Mayer,
--------------------------------------
Richard P. Mayer,
Chairman of the Compensation
Committee of the Board of Directors
EXECUTIVE:
/s/ Theodore J. Theophilos
--------------------------------------
Theodore J. Theophilos
-11-
<PAGE>
EXHIBIT 23.1
[LETTERHEAD OF ARTHUR ANDERSEN LLP]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our
reports (and to all references to our Firm) included in or made a part of this
registration statement.
/s/ Arthur Andersen LLP
-------------------------------------
Arthur Andersen LLP
Chicago, Illinois
June 22, 1998
<PAGE>
EXHIBIT 23.2
[LETTERHEAD OF KPMG PEAT MARWICK]
ACCOUNTANTS' CONSENT
The Board of Directors
True North Communications, Inc.:
We consent to the incorporation by reference in the Registration Statement on
Form S-3 of True North Communications Inc. of our report dated May 16, 1997,
relating to the consolidated statements of operations, cash flows, and
stockholders' equity of Bozell, Jacobs, Kenyon & Eckhardt, Inc. and
subsidiaries for each of the years in the two-year period ended March 31,
1997, which report appears in the December 31, 1997, annual report on Form 10-
K of True North Communications, Inc.
KPMG Peat Marwick LLP
Omaha, Nebraska
June 22, 1998
<PAGE>
EXHIBIT 24.1
POWER OF ATTORNEY
WHEREAS, True North Communications Inc., a Delaware corporation (the
"Corporation"), proposes to purchase all or substantially all of the assets of
BP Tierney & Associates, Inc. in exchange for cash and for shares of Common
Stock of the Corporation.
WHEREAS, in order to register such shares, the Corporation proposes to file
shortly with the Securities and Exchange Commission, under the provisions of
the Securities Act of 1933, as amended, a Registration Statement on Form S-3
(the "Registration Statement") with respect to such shares of Common Stock
which may be sold, from time to time, by certain selling stockholders for
their respective accounts;
NOW THEREFORE, each person whose signature appears below constitutes and
appoints Bruce Mason, Donald L. Seeley and Theodore J. Theophilos, and each of
them, his or her true and lawful attorney-in-fact and agent, with full power
of substitution and resubstitution, in any and all capacities, to sign the
Registration Statement or amendments (including post-effective amendments)
thereto and to file the same with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto each of said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitutes, may lawfully do or cause
to be done by virtue hereof.
<TABLE>
<CAPTION>
NAME DATE SIGNED
---- -----------
<S> <C>
/s/ Charles D. Peebler, Jr. April 21, 1998
___________________________________________
Charles D. Peebler, Jr.
/s/ Richard S. Braddock April 16, 1998
___________________________________________
Richard S. Braddock
/s/ David A. Bell April 13, 1998
___________________________________________
David A. Bell
/s/ Donald M. Elliman, Jr. April 14, 1998
___________________________________________
Donald M. Elliman, Jr.
/s/ W. Grant Gregory April 19, 1998
___________________________________________
W. Grant Gregory
/s/ Leo-Arthur Kelmenson April 14, 1998
___________________________________________
Leo-Arthur Kelmenson
/s/ Richard P. Mayer April 13, 1998
___________________________________________
Richard P. Mayer
/s/ Michael E. Murphy April 12, 1998
___________________________________________
Michael E. Murphy
/s/ J. Brendan Ryan April 10, 1998
___________________________________________
J. Brendan Ryan
/s/ Stephen T. Vehslage April 23, 1998
___________________________________________
Stephen T. Vehslage
</TABLE>
<PAGE>
ASSET PURCHASE AGREEMENT
dated
as of March 31, 1998
By and Among
The Tierney Group, Inc., a Delaware corporation,
as Buyer,
True North Communications Inc.,
a Delaware corporation,
as the Sole Shareholder of Buyer
and
BP Tierney & Associates, Inc. t/a The Tierney Group
a Pennsylvania corporation,
as Seller
and
Brian P. Tierney,
as the Sole Shareholder of Seller
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I. DEFINITIONS................................................ 1
1.1. Definitions................................................ 1
ARTICLE II. PURCHASE AND SALE.......................................... 6
2.1. Purchase and Sale.......................................... 6
2.2. Excluded Assets............................................ 7
2.3. Assumption of Liabilities.................................. 8
2.4. Excluded Liabilities....................................... 9
2.5. Purchase Price............................................. 9
2.6. Payment of the Purchase Price.............................. 9
2.7. Termination of Shareholder's Employment.................... 12
2.8. Working Capital Purchase Price Adjustment.................. 13
2.9. Collection of Accounts Receivable; Reduction of Earnout
Payments................................................... 13
2.10. Right of Endorsement....................................... 14
2.11. Valuation of Purchased Assets.............................. 14
2.12. Closing.................................................... 14
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF SELLER AND
SHAREHOLDER................................................ 15
3.1. Corporate Existence and Power.............................. 15
3.2. Corporate Authorization.................................... 16
3.3. Governmental Authorization................................. 16
3.4. Non-Contravention.......................................... 16
3.5. Seller Capitalization...................................... 16
3.6. Subsidiaries............................................... 17
3.7. Consents................................................... 17
3.8. Financial Statements....................................... 17
3.9. Absence of Certain Changes................................. 18
3.10. Properties; Title to the Purchased Assets.................. 18
3.11. Litigation................................................. 19
3.12. Contracts.................................................. 19
3.13. Licenses and Permits....................................... 19
3.14. Compliance with Laws....................................... 20
3.15. Intellectual Property...................................... 20
3.16. Clients; Billings.......................................... 21
3.17. Accounts Receivable........................................ 21
3.18. Deposits................................................... 21
3.19. Employees.................................................. 21
3.20. Benefit Plans.............................................. 22
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
3.21. Shareholder Transactions................................... 22
3.22. Real Property.............................................. 22
3.23. Accounts................................................... 23
3.24. Tax Matters................................................ 23
3.25. Environmental Laws......................................... 23
3.26. Finders' Fees.............................................. 23
3.27. Investment Representations................................. 24
3.28. Other Information.......................................... 24
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF BUYER.................... 25
4.1. Corporate Existence and Power.............................. 25
4.2. Corporate Authorization.................................... 25
4.3. Authorization.............................................. 25
4.4. Issuance of the Shares..................................... 25
4.5. Registration of the Shares................................. 25
4.6. Non-Contravention.......................................... 25
4.7. Finders' Fees.............................................. 26
4.8. Other Information.......................................... 26
4.9. SEC Filings................................................ 26
4.10. Absence of Material Adverse Change......................... 26
ARTICLE V. COVENANTS OF SELLER AND SHAREHOLDER PENDING CLOSING........ 26
5.1. Conduct of the Business.................................... 26
5.2. Access to Information...................................... 28
5.3. Notices of Certain Events.................................. 28
5.4. Exclusivity................................................ 29
5.5. Transfer of Name........................................... 29
5.6. Termination of 401(k) Plan................................. 29
ARTICLE VI. POST CLOSING COVENANTS..................................... 29
6.1.1. Confidentiality............................................ 29
6.1.2. Change of Name; Wind-Up of Seller.......................... 30
6.1.3. Performance of Excluded Liabilities........................ 30
6.1.4. No Distributions........................................... 30
6.1.5. Licenses and Permits....................................... 30
6.2. Buyer and True North jointly and severally covenant and
agree that: ............................................... 30
6.2.1. Operations of the Business During the Earnout Periods...... 30
6.2.2. Right of First Refusal..................................... 31
6.2.3. Continuity of Benefits..................................... 31
6.3. Tax Matters................................................ 31
</TABLE>
ii
<PAGE>
<TABLE>
<C> <S> <C>
ARTICLE VII. COVENANTS OF BUYER ........................................ 32
7.1. Registration of True North Common Stock ................... 32
7.2. Delivery of SEC Filings ................................... 35
ARTICLE VIII. COVENANTS OF ALL PARTIES HERETO ........................... 36
8.1. Best Efforts; Further Assurances .......................... 36
8.2. Confidentiality of Transaction ............................ 36
8.3. Best Efforts to Obtain Consents ........................... 37
8.4. Payments and Obligations .................................. 37
ARTICLE IX. CONDITIONS TO CLOSING ..................................... 37
9.1. Condition to the Obligations of Buyer and Seller .......... 37
9.2. Conditions to Obligations of Buyer ........................ 37
9.3. Conditions to Obligations of Seller ....................... 39
ARTICLE X. INDEMNIFICATION ........................................... 40
10.1. Indemnification of Buyer .................................. 40
10.2. Indemnification of Seller and Shareholder by Buyer and
True North ................................................ 41
10.3. Procedure ................................................. 41
10.4. Periodic Payments ......................................... 43
10.5. Insurance ................................................. 43
10.6. Survival of Indemnification Rights ........................ 43
ARTICLE XI. DISPUTE RESOLUTION......................................... 44
11.1. Arbitration ............................................... 44
11.2. Waiver of Jury Trial; Exemplary Damages ................... 45
11.3. Attorneys' Fees ........................................... 46
ARTICLE XII. TERMINATION................................................ 46
12.1. Termination Without Default ............................... 46
12.2. Termination Upon Default .................................. 46
12.3. Survival .................................................. 47
ARTICLE XIII. MISCELLANEOUS ............................................. 47
13.1. Notices ................................................... 47
13.2. Amendments; No Waivers .................................... 48
13.3. Publicity ................................................. 49
13.4. Expenses .................................................. 49
13.5. Successors and Assigns .................................... 49
13.6. Governing Law ............................................. 49
13.7. Counterparts; Effectiveness ............................... 49
13.8. Entire Agreement .......................................... 49
13.9. Bulk Sales Laws ........................................... 49
13.10. Setoff .................................................... 49
</TABLE>
iii
<PAGE>
<TABLE>
<C> <S> <C>
13.11. Disclosure ................................................ 50
13.12. Remedies .................................................. 50
13.13. Severability .............................................. 50
13.14. Captions .................................................. 50
13.15. Guarantee ................................................. 50
13.16. Permitted Transfers ....................................... 50
Exhibit A Legend
Exhibit B Assignment and Assumption Agreement
Exhibit C Employment Agreement
Exhibit D Opinion of Seller's and Shareholder's Counsel
Exhibit E Non-Compete Agreement
Exhibit F Opinion of Buyer's and True North's Counsel
</TABLE>
iv
<PAGE>
ASSET PURCHASE AGREEMENT
AGREEMENT, dated as of March 31, 1998, by and among The Tierney Group,
Inc., a Delaware corporation ("Buyer"), which is a wholly owned subsidiary of
True North Communications Inc., a Delaware corporation ("True North"), True
North, BP Tierney & Associates, Inc. t/a The Tierney Group, a Pennsylvania
corporation ("Seller"), and Brian P. Tierney, the sole shareholder of Seller
("Shareholder").
W I T N E S E T H :
WHEREAS, Seller is in the business of providing public relations and
other marketing communications services (the foregoing being referred to
hereinafter collectively as the "Business");
WHEREAS, Shareholder is the sole shareholder of Seller; and
WHEREAS, Buyer desires to purchase certain of the assets and assume
certain liabilities of the Business from Seller, and Seller desires to sell such
assets and liabilities of the Business to Buyer, upon the terms and subject to
the conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements herein contained and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE I.
DEFINITIONS
1.1. Definitions. The following terms, as used herein, have the
following meanings:
"Advertising Company" means Tierney & Partners, Inc., a Pennsylvania
corporation.
<PAGE>
"Affiliate" means, with respect to any Person, any Person directly or
indirectly controlling, controlled by, or under common control with such other
Person. With respect to any natural person, the term Affiliate shall also
include any member of said person's immediate family.
"Arbitrator" has the meaning set forth in Section 11.1.
"Assumed Liabilities" has the meaning set forth in Section 2.3.
"Business" has the meaning set forth in the Recitals.
"Business Day" means any day other than a Saturday, Sunday or any day
on which banking institutions in New York are not open for business.
"Buyer Consents" means the consents, waivers and amendments to be
obtained by Buyer and its Affiliates with respect to the execution, delivery and
performance by Buyer and its Affiliates of this Agreement and the Guarantee and
all related matters between Buyer and its Affiliates and Seller.
"Closing" has the meaning set forth in Section 2.12.
"Closing Date" has the meaning set forth in Section 2.12.
"Closing Payment" has the meaning set forth in Section 2.5.
"Collection Period" has the meaning set forth in Section 2.9(a).
"Contracts" has the meaning set forth in Section 2.1(v).
"Conveyance Documents" has the meaning set forth in Section 2.12.
"Defaulted Contract" has the meaning set forth in Section 2.3.
"Earnout Payments" has the meaning set forth in Section 2.6.
"Employment Agreement" has the meaning set forth in Section 9.2(k).
"Environmental Laws" has the meaning set forth in Section 3.26.
2
<PAGE>
"ERISA" means the Employment Retirement Income Security Act of 1974,
as amended from time to time.
"Excess Working Capital" means $1,207,045 which is the Working Capital
of Seller as of December 31, 1997 in excess of $1,000,000 as determined by
agreement of Seller, Shareholder, Buyer and True North pursuant to the Year End
Balance Sheet.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Excluded Assets" has the meaning set forth in Section 2.2.
"Excluded Liabilities" has the meaning set forth in Section 2.4.
"Excluded Persons" has the meaning set forth in Section 5.4.
"Financial Statements" has the meaning set forth in Section 3.8.
"GAAP" means generally accepted accounting principles.
"Harrisburg Office Liabilities" has the meaning set forth in Section
2.3.
"Indemnifying Parties" has the meaning set forth in Section 10.3.
"Indemnified Parties" has the meaning set forth in Section 10.3.
"Intellectual Property Right" means any trademark, service mark,
registration thereof or application for registration therefor, trade name,
license, invention, patent, patent application, trade secret, trade dress, know-
how, copyright, copyrightable materials, copyright registration, application for
copyright registration, software programs and data bases, the "BP Tierney &
Associates" name and the "Tierney Group" name and all derivations thereof, and
any other type of proprietary intellectual property right, and all embodiments
and fixations thereof and related documentation, registrations and franchises
and all additions, improvements and accessions thereto, in each case which is
owned or licensed or filed by Seller or any of its Affiliates or used or held
for use in the Business.
"Law" means any domestic or foreign Federal, state, municipality or
local law, statute, ordinance, rule or regulation.
3
<PAGE>
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
including, without limitation, any agreement to give any of the foregoing and
any conditional sale.
"Loss" has the meaning set forth in Section 10.1.
"Material Adverse Change" means a material adverse change in the
business, assets, condition (financial or otherwise), results of operations or
prospects of the Business.
"Material Adverse Effect" means a material adverse effect on the
business, assets, condition (financial or otherwise), results of operations or
prospects of the Business.
"Office Leases" has the meaning set forth in Section 2.1(i).
"Permits" has the meaning set forth in Section 3.13.
"Person" means an individual, a corporation, a partnership, an
association, a trust or other entity or organization, including a government,
domestic or foreign, or political subdivision or an agency or instrumentality
thereof.
"Philadelphia Lease" has the meaning set forth in Section 5.1(a).
"Profit Before Taxes" has the meaning set forth in Section 2.6.
"Prospectus" has the meaning set forth in Section 7.1(a).
"Purchase Price" has the meaning set forth in Section 2.5.
"Purchased Assets" has the meaning set forth in Section 2.1.
"Purchaser Indemnitees" has the meaning set forth in Section 10.1.
"Registration" has the meaning set forth in Section 7.1(a).
"Registration Statement" has the meaning set forth in Section 7.1(a).
"Restrictive Covenants" has the meaning set forth in Section 6.3.
4
<PAGE>
"Scheduled Closing Date" has the meaning set forth in Section 12.1.
"SEC" has the meaning set forth in Section 7.1(a).
"SEC Filings" has the meaning set forth Section 7.2.
"Securities Act" means the Securities Act of 1933, as amended.
"Seller Consents" has the meaning set forth in Section 3.7.
"Seller Indemnitees" has the meaning set forth in Section 10.2.
"Shares" has the meaning set forth in Section 2.6(a).
"Shareholder Loans" has the meaning set forth in Section 2.5.
"Stock Certificate" has the meaning set forth in Section 2.6(a).
"Stock Purchase Agreement" has the meaning set forth in Section 2.11.
"Tangible Assets" has the meaning set forth in Section 2.1(ii) hereof.
5
<PAGE>
"Tax" means any federal, state, local or foreign income,
alternative minimum, gross receipts, profits, sales, use, ad valorem, franchise,
license, withholding, employment, social security, workers compensation,
unemployment compensation, excise, import, real or personal property, or other
tax, fee or like assessment or charge, together with any interest, any penalty
and additional taxes and additions to tax imposed with respect thereto, imposed
by any governmental authority.
"Tax Payment" has the meaning set forth in Section 2.6(c).
"Tierney Name" has the meaning set forth in Section 6.1.2.
"True North Common Stock" means the common stock, $0.33 1/3 par
value per share, of True North.
"Working Capital" means current assets less current liabilities,
calculated on an accrual basis according to GAAP, consistently applied; provided
however that there shall be excluded from current assets those items referred to
in Section 2.2(ii), (iii), (iv), (v), (vi) and (viii).
"Year-End Acquired Receivables" has the meaning set forth in
Section 2.9(a).
"Year-End Balance Sheet" has the meaning set forth in Section
3.8.
ARTICLE II.
PURCHASE AND SALE
2.1. Purchase and Sale. Upon the terms and subject to the
conditions of this Agreement, at the Closing Buyer agrees to purchase from
Seller and Seller agrees to (and Shareholder agrees to cause Seller to) sell,
convey, transfer, assign and deliver to Buyer, free and clear of all Liens, all
right, title and interest of Seller in, to and under all of the assets of
Seller, other than the Excluded Assets, including without limitation the
following described assets, properties and rights of Seller as the same shall
exist at the Closing (including all such assets, properties and rights acquired
by Seller on or after the date hereof) (the "Purchased Assets"):
(i) the goodwill of the Business;
6
<PAGE>
(ii) the sublease with respect to Seller's Harrisburg office
described on Schedule 2.1(ii) attached hereto, together with all fixtures
and improvements erected on the premises leased thereby and together with
all fixtures and improvements erected on the premises subleased by Buyer
under the Philadelphia Lease (the "Office Leases");
(iii) all tangible personal property and interests therein,
including computers and accessories, furniture, office equipment,
communications equipment, vehicles and other tangible property, including
without limitation the items listed on Schedule 2.1(iii) (collectively, the
"Tangible Assets");
(iv) all work-in-process, supplies and other inventories of
Seller;
(v) the contracts, agreements, leases (including equipment leases
and capital leases), licenses, commitments, client contracts, sales and
purchase orders and other instruments listed on Schedule 2.1(v), and
similar instruments entered into by Seller in compliance with Section 5.1
after the signing hereof and prior to the Closing, and all rights
thereunder (together with the Office Leases, collectively, the
"Contracts");
(vi) all prepaid expenses and deposits pertaining to any of the
Purchased Assets, including but not limited to leases and rentals;
(vii) all of Seller's rights, claims, credits, causes of action
or rights of set-off against third parties relating to the Purchased
Assets, including, without limitation, unliquidated rights under
manufacturers' and vendors' warranties;
(viii) except as provided in Section 2.2(viii), all Intellectual
Property Rights and other intangible property of Seller (and all goodwill
associated therewith), including without limitation the items listed on
Schedule 3.15;
(ix) all cash, cash equivalents, deposits, including deposits
from clients for media purchases to run prior to Closing, securities
(except as set forth in Section 2.2(v)), commodities, deposit accounts,
checking accounts, brokerage accounts and all other accounts and all
securities and investments;
(x) all accounts, notes, and other receivables (except as set
forth in Section 2.2(iii), (iv) and (vi)), whether or not accrued, and
7
<PAGE>
whether or not billed of Seller, including without limitation the items set
forth on Schedule 2.1(x);
(xi) all transferable licenses, permits or other governmental
authorizations of Seller, including without limitation the items listed on
Schedule 3.13; and
(xii) all books, records, film, files and papers of Seller,
whether in hard copy or computer format, including, without limitation,
sales and promotional literature, manuals and data, sales and purchase
correspondence, lists of present and former suppliers, lists of present and
former clients, and personnel and employment records.
2.2. Excluded Assets. Buyer expressly understands and agrees that the
following assets and properties of Seller (the "Excluded Assets") shall be
excluded from the Purchased Assets:
(i) all rights of Seller in and to this Agreement;
(ii) the artwork and office furniture located in Seller's offices
as set forth on Schedule 2.2 (ii);
(iii) liabilities owed to Seller by Shareholder or any Affiliate
of Shareholder including, but not limited to the Shareholder Loans;
(iv) all Intellectual Property Rights and all receivables
relating to the Atlantic Capital Conference that Seller organized in May
1996;
(v) the 30,242 shares of stock of Digital Broadband Applications
Corp. held by Seller;
(vi) the receivable of $159,601.47 relating to Seller's services
rendered for Mrs. David Shultz on or before December 31, 1997 (but not with
respect to any services rendered thereafter);
(vii) the stock books and minute books of Seller, Seller's
corporate seal and all books and records relating to any Excluded Asset or
Excluded Liability;
(viii) all Intellectual Property Rights (and all goodwill
associated therewith) in connection with "The Marriott Business Travel
Institute"; and
8
<PAGE>
(ix) any assets which would otherwise be Purchased Assets which
are sold or otherwise disposed of in the ordinary course of the operation
of the Business and not in violation of any provisions of this Agreement
during the period from the date hereof until the Closing.
2.3. Assumption of Liabilities. Upon the terms and subject to the
conditions of this Agreement, at the Closing Buyer agrees to assume the
following liabilities and obligations of Seller (the "Assumed Liabilities"): all
current liabilities of Seller set forth on the Year-End Balance Sheet (except to
the extent paid or performed prior to the Closing Date and except for Taxes
based on net income), except for the profit sharing expense payable in the
amount of $78,463, and all liabilities and obligations arising in the ordinary
course of business after the date of the Year-End Balance Sheet including
without limitation City of Philadelphia taxes, City of Harrisburg taxes, and
sales, employment and other miscellaneous taxes (except to the extent paid or
performed prior to the Closing Date and except for Taxes based on net income),
including those liabilities and obligations arising under the Contracts other
than (a) Contracts as to which (i) a Seller Consent was required but was not
obtained, except if Seller notifies Buyer that the Seller Consent has not been
obtained and, notwithstanding such notification, Buyer desires to, and
effectively does, assume the Contract, or (ii) any party is in default (whether
with or without the passage of time or the giving of notice or both) or breach
as of the Closing Date (a "Defaulted Contract"), and (b) liabilities or
obligations attributable to any failure by Seller to comply with the terms
thereof prior to the Closing Date. If Seller notifies Buyer prior to the Closing
that any Contract is a Defaulted Contract, then Buyer shall have the option
whether or not to assume any liabilities associated with such Defaulted
Contract. Notwithstanding anything else set forth in this Section 2.3, any
liability that results from the failure of Seller to obtain the consent of the
landlord or sublandlord of the Harrisburg office sublease to the assignment to
Buyer of said Sublease ("Harrisburg Office Liabilities") is not an Assumed
Liability but is an Excluded Liability.
2.4. Excluded Liabilities. Notwithstanding any provision in this
Agreement or any other writing to the contrary, Buyer is assuming only the
Assumed Liabilities and is not assuming any other liability or obligation of
Seller of whatever nature whether presently in existence or arising hereafter.
All such other liabilities and obligations, including, without limitation, (i)
all liabilities existing or incurred on or prior to December 31, 1997, not set
forth on the Year-End Balance Sheet, (ii) any liability resulting from any tort
or any violation of any Law or the breach of any contract under which Seller is
bound or obligated; (iii) any liability relating to any employee benefit plan,
(iv) any liability for Taxes (except as otherwise specifically set forth in
Section 2.3), (v) Harrisburg Office Liabilities, (vi) any liability with respect
to any amounts payable to Mary Austen and Jay Devine as referred to in Schedule
3.19(a) and (vii) any liability or obligation relating to any
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Excluded Asset, shall be retained by and remain obligations and liabilities of
Seller (all such liabilities and obligations not being assumed being herein
referred to as the "Excluded Liabilities").
2.5. Purchase Price. The purchase price for the Purchased Assets shall
be the sum of the Closing Payments plus the Earnout Payments plus the Tax
Payment, subject to adjustment as set forth in Sections 2.7, 2.8 and 2.9
(collectively, the "Purchase Price"). The Closing Payment shall be the sum of
(i) $2,000,000 plus (ii) an amount equal to the Excess Working Capital of
$1,207,045 less the amount of any loans from Seller to Shareholder or any
Affiliate of Shareholder outstanding on the Closing Date that were made after
December 31, 1997 (such loans totalling $223,139) ("Shareholder Loans") plus
(iii) the issuance of the Shares.
2.6. Payment of the Purchase Price. The Purchase Price shall be
payable as follows, subject, however in each case to Sections 2.7 and 2.8 and,
in the case of the Earnout Payments, to Section 2.9:
(a) The Closing Payment shall be deliverable by Buyer on the Closing
Date in the form of (i) one stock certificate representing 82,092 shares (the
"Shares") of True North Common Stock (collectively, the "Stock Certificate")
issued in the name of Seller, (ii) $2,000,000 in cash and (iii) a cash amount
equal to the Excess Working Capital minus the amount of the Shareholder Loans,
such cash amounts to be delivered by wire transfer of immediately available
funds to an account of Seller, as shall have been designated in writing by
Seller to Buyer at least two (2) Business Days prior to the Closing. The Stock
Certificate shall bear the legend set forth on Exhibit A unless the Registration
Statement with respect to the Shares contemplated by Section 7.1 shall have been
declared effective by the SEC and no stop order with respect thereto shall have
been issued or threatened.
(b) Subject to the remaining provisions of this Section 2.6, the
Earnout Payments shall be payable to Seller or Shareholder as shall be directed
by Shareholder as follows:
(i) On or before March 15, 1999, a payment equal to 55.5% of
the Profit Before Taxes (as hereinafter defined) of the Business for
Buyer's fiscal year ending December 31, 1998 shall be deliverable by Buyer
to Seller.
(ii) On or before March 15, 2000, a payment equal to 55.5% of
the average of the Profit Before Taxes of the Business for Buyer's fiscal
year ending December 31, 1998 and Buyer's fiscal year ending December 31,
1999 shall be deliverable by Buyer to Seller.
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(iii) On or before March 15, 2001, a payment equal to 55.5% of
the average of the Profit Before Taxes of the Business for Buyer's fiscal
year ending December 31, 1998, Buyer's fiscal year ending December 31, 1999
and Buyer's fiscal year ending December 31, 2000 shall be deliverable by
Buyer to Seller.
There shall be no ceiling on the Earnout Payments and each Earnout
Payment shall be delivered on or before the specified date by wire transfer of
immediately available funds to an account of Seller or Shareholder as shall have
been designated in writing by Shareholder to Buyer at least two (2) Business
Days prior to the designated payment date. If any such payment date is not a
Business Day, the Earnout Payment shall be delivered on the next Business Day.
The payments described in clauses (i), (ii), and (iii) of this Section
2.6(b) are referred to herein as the "Earnout Payments." For purposes of this
Section 2.6, subject to Section 2.7, the term "Profit Before Taxes" shall mean
with respect to any period the revenue earned by the Buyer from operations of
the Business minus the total of all operating costs, determined according to
GAAP, consistently applied on an accrual basis, in accordance with past
practices, including, without limitation, interest on inter-company borrowings
at the rate charged by True North to its Affiliates from time to time, which is
currently ten percent (10%) per annum, and interest, fees and other charges on
third party borrowings, salary and other compensation and benefits, general
administrative costs, depreciation and amortization, Taxes (other than Taxes
payable with respect to the net income of the Business), any charges for media
buying, in-house legal services and MIS charges for media buying invoiced by TN
Services consistent with existing practices of True North with respect to the
Advertising Company as well as charges for any other services performed by any
Affiliates of Buyer at the request or under the direction of and pre-approved by
Shareholder. Operating costs shall not include corporate allocations, any
goodwill amortization with respect to the transactions contemplated hereby or
any interest related to payments of Purchase Price. Operating costs shall
include all expenses accrued under the Employment Agreement for such year of
employment; provided however, that so long as Shareholder is also an employee of
the Advertising Company, Operating Costs shall include only 50% of all expenses
accrued under the Employment Agreement, and further provided, expenses relating
to benefits or salary payable under the Employment Agreement shall only accrue
in the year such benefits or salary is paid.
For purposes of this Section 2.6, Buyer's Profit Before Taxes for its
1998 fiscal year shall include the profit before taxes of Seller for the period
from January 1, 1998 through the Closing Date determined in the same manner as
"Profit Before Taxes" is to be determined with respect to Buyer.
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As promptly as reasonably practicable after the end of each
fiscal year for which there is to be an Earnout Payment, but in any event prior
to March 15 of the following year, (i) Buyer at its expense shall prepare and
forward to Shareholder financial statements of Buyer and Buyer's preliminary
determination of Profit Before Tax for the previous fiscal year, and (ii) Buyer
and Shareholder shall mutually determine, or cause to be determined, the Profit
Before Taxes, for the relevant fiscal year of the Business. Such determination
shall be made in good faith and, upon the agreement of Shareholder and Buyer
thereto, shall be binding and conclusive upon all parties hereto.
If Shareholder and Buyer are unable to agree in good faith as to
the Profit Before Taxes for any relevant fiscal year by March 15 of the
following year, then Buyer and Shareholder shall submit any matter(s) in dispute
to a mutually acceptable certified public accountant at a "Big 6" accounting
firm located in Philadelphia, Pennsylvania for resolution. In the event
Shareholder and Buyer cannot agree upon the accountant, they shall each select a
certified public accountant at such a firm (which need not be the same firm) and
such accountants shall select the certified public accountant to make the
determination referred to this Section, provided however, such accountant shall
not be employed by or associated with any accounting firm which performs
services for Buyer, True North or Shareholder. Such accountant (whether mutually
determined by Shareholder and Buyer or selected pursuant to the immediately
preceding sentence) shall review such materials and conduct such procedures as
such accountant shall consider reasonably necessary to make a determination of
such matters as to which disagreement remains and shall deliver his written
opinion thereon to Buyer and Shareholder as soon as possible within thirty (30)
days of submission of the dispute to him, which determination, or any
determination of such matters mutually agreed to by Buyer and Shareholder, shall
be conclusive and binding on the parties hereto and shall not be subject to
arbitration under Section 11 below (the "Final Determination"). In connection
therewith, each party will furnish to the accountant such work papers and
schedules and other information relating to the disputed matter(s) as the
accountant may reasonably request and will be afforded an opportunity to present
to the accountant any material relating to the disputed matter(s) and to discuss
the disputed matter(s) with the accountant. The costs and expenses of the
accountant incurred with respect to this Section shall be shared equally by
Buyer and Shareholder and any expenses of the separate accountants referred to
in the second sentence of this Section shall be the responsibility of the party
selecting such accountant. Failure to make an Earnout Payment on or before March
15 of the year after the close of the fiscal year over which there is a dispute,
shall not be a breach by Buyer of this Agreement, so long as the Earnout Payment
is made within fifteen (15) days of the receipt by the Buyer of the Final
Determination.
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(c) Buyer shall pay to Seller an amount equal to 51.6% of the
operating income of Seller on a cash basis for the period beginning on January
1, 1998 and ending on the Closing Date (the "Tax Payment").
2.7. Termination of Shareholder's Employment.
(a) In the event True North or its Affiliates terminates the
Shareholder's employment with True North or its Affiliates for "Cause" (as such
term is defined in the Employment Agreement) or the Shareholder terminates his
employment with True North or its Affiliates for any reason other than "Good
Reason" (as such term is defined in the Employment Agreement), death or
"Disability" (as such term is defined in the Employment Agreement), Seller shall
not be entitled to receive any Earnout Payments subsequent to such termination
(other than with respect to any fiscal year of Buyer completed prior to such
termination of employment), and Buyer shall not be under any obligation to make
such Earnout Payments.
(b) In the event True North or its Affiliates terminates the
Shareholder's employment with True North or its Affiliates without Cause or the
Shareholder terminates his employment with True North or its Affiliates for Good
Reason or if at any time Buyer or True North materially breaches the covenants
contained in Section 6.2, provided Shareholder delivers notice thereof to True
North and Buyer and such material breach is not cured within thirty (30) days of
receipt of such notice: (i) during 1998, then the Buyer shall pay Seller a cash
payment equal in the aggregate to $2,000,000 and payable in three (3) equal
installments at such time as the Earnout Payments are due under Section 2.6(b);
(ii) during 1999, then the Profit Before Taxes of the Business for Buyer's 1999
and 2000 fiscal years shall each be deemed to be equal to the Profit Before
Taxes of the Business for Buyer's 1998 fiscal year for purposes of calculating
the second and third Earnout Payments pursuant to Section 2.6(b)(ii) and (iii);
or (iii) during 2000, then the Profit Before Taxes of the Business for Buyer's
2000 fiscal year shall be deemed to be equal to the average of the Profit Before
Taxes of the Business for Buyer's 1998 and 1999 fiscal years for purposes of
calculating the third Earnout Payment pursuant to Section 2.6(b)(iii). The
Earnout Payments as calculated under this Section 2.7(b) shall be payable at
such time as the Earnout Payments are due under Section 2.6(b) regardless of the
termination of Shareholder's employment with True North or its Affiliates or the
occurrence of a breach of the covenants set forth in Section 6.2.
(c) In the event Shareholder's employment with True North or its
Affiliates terminates due to Shareholder's death or Disability then the Earnout
Payments shall be calculated as set forth in Section 2.6(b)(i), (ii) and (iii)
using the actual Profit Before Taxes of the Business for each relevant fiscal
year.
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(d) Payments under this Section 2.7 are in lieu of, and not in
addition to any payments under Section 2.6(b).
2.8. Working Capital Purchase Price Adjustment. As promptly as
reasonably practicable but in any event no later than August 17, 1998 Buyer will
calculate the Working Capital of the Business on June 30, 1998. If the Working
Capital measured on June 30, 1998 is less than $1,000,000, Buyer shall pay to
Seller the amount equal to the excess of $1,000,000 over the Working Capital
measured on June 30, 1998 and such payment shall constitute an adjustment to the
cash portion of the Closing Payment.
2.9. Collection of Accounts Receivable; Reduction of Earnout
Payments.
(a) With respect solely to the accounts receivable set
forth on the Year End Balance Sheet, Buyer shall use reasonable efforts in good
faith to collect such of those accounts receivable which are outstanding as of
the Closing Date and included within the Purchased Assets (collectively, the
"Year-End Acquired Receivables") for a period of one hundred eighty (180) days
following the Closing Date (the "Collection Period"); provided that Buyer shall
have no obligation to threaten, commence or prosecute any legal proceeding or to
incur any unreasonable expense to collect the Year-End Acquired Receivables and
Buyer shall have the right in good faith to compromise or settle any Year-End
Acquired Receivables.
(b) In the event that payment is made by a client which
cannot be specifically matched to an invoice, then such payment shall be applied
to the accounts receivable in chronological order starting with the oldest
invoices first. Buyer shall make a good faith effort to match all payments to
their invoices.
(c) In the event the sum of the proceeds of Year-End
Acquired Receivables collected by Buyer within the Collection Period is less
than the amount of the Year-End Acquired Receivables as of the Closing Date,
then the Purchase Price shall be reduced by the amount of such shortfall. Such
reduction in the Purchase Price shall be applied by reducing Earnout Payments
otherwise payable in chronological order, and shall be Buyer's and True North's
sole remedy for any breach of Section 3.17 hereof.
(d) Buyer shall assign all right, title and interest in the
Year-End Acquired Receivables that are not collected during the Collection
Period to Seller promptly after the expiration of the Collection Period and
Seller shall have the right to collect and retain all amounts owed thereunder.
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2.10. Right of Endorsement. After the Closing Date, Buyer shall
have the absolute and unconditional right and authority to endorse, without
recourse, the name of Seller on any check or other form of payment received by
Buyer on account of any of the Purchased Assets. In connection therewith, Seller
shall deliver to Buyer at the Closing copies of the resolutions duly adopted by
its Board of Directors certified by Seller's Secretary, and a letter of
instruction executed by Seller's President and the Secretary, sufficient to
permit Buyer to deposit such payments, so endorsed, in bank accounts in the name
of Buyer.
2.11. Valuation of Purchased Assets. Seller and Buyer hereby
agree that the Purchased Assets have the values, and the Closing Payment has
been allocated to the Purchased Assets, as follows: Tangible Assets, accounts
receivable, inventory and cash will be valued at their book value as set forth
on Seller's books and the balance of the Closing Payment will be applied to
goodwill. All other payments of the Purchase Price shall be allocated in their
entirety to goodwill. Seller and Buyer agree to act in accordance with such
allocation and to consult with each other in good faith in the preparation of
financial statements and filing of all Tax returns and in the course of any Tax
audit, review or dispute relating thereto.
2.12. Closing. Subject to the satisfaction or waiver of the
conditions set forth in Article IX, the closing (the "Closing") of the purchase
and sale of the Purchased Assets and the assumption of the Assumed Liabilities
hereunder shall take place at the offices of Loeb & Loeb LLP, 345 Park Avenue,
New York, New York 10154, on April 9, 1998 at 10:00 a.m., or at such other date,
time or place as Buyer and Seller may agree (the date and time of the Closing
being the "Closing Date"). At the Closing,
(a) Buyer shall deliver the Closing Payment in accordance with
Section 2.6(a); and
(b) Seller and Buyer shall enter into an Assignment and
Assumption Agreement in the form of Exhibit B hereto, and Seller shall deliver
to Buyer such other bills of sale, endorsements, consents, assignments and other
good and sufficient instruments of conveyance and assignment (collectively, with
the Assignment and Assumption Agreement, the "Conveyance Documents") as Buyer
and its counsel shall deem reasonably necessary or appropriate to vest in Buyer
all right, title and interest in, to and under the Purchased Assets; and all
original documents that represent Purchased Assets, including without limitation
original Contracts and Permits.
The Closing shall be deemed to occur simultaneously with the
closing of the transactions contemplated under the Stock Purchase Agreement
dated
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the date hereof (the "Stock Purchase Agreement"), by and between Shareholder and
True North.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF
SELLER AND SHAREHOLDER
Seller and Shareholder, jointly and severally, hereby represent
and warrant to Buyer that:
3.1. Corporate Existence and Power. Seller is a corporation
duly organized, validly existing and in good standing under the Laws of the
Commonwealth of Pennsylvania, and has all power and authority, corporate and
otherwise, and all governmental licenses, franchises, permits, authorizations,
consents and approvals required to carry on the Business. Seller is duly
qualified and in good standing to do business as a foreign corporation in each
jurisdiction set forth on Schedule 3.1 and other than the jurisdictions set
forth on Schedule 3.1, there is no other jurisdiction in which the character of
the property owned or leased by Seller or the nature of its activities make such
qualification necessary. Seller's only offices are located at (i) 200 South
Broad Street, Philadelphia, Pennsylvania 19102, (ii) 200 North Third Street,
Harrisburg, Pennsylvania 17101 and (iii) 1200 G Street, NW, Washington, DC
20005.
3.2. Corporate Authorization. The execution, delivery and
performance by Seller of this Agreement and the Conveyance Documents and the
consummation by Seller of the transactions contemplated hereby and thereby are
within the corporate powers of Seller and have been duly authorized by all
necessary corporate action on the part of Seller, including the approval of the
Shareholder. This Agreement constitutes, and upon their execution and delivery
the Conveyance Documents will constitute, a valid and legally binding agreement
of Seller and Shareholder, enforceable against both of Seller and Shareholder in
accordance with their respective terms.
3.3. Governmental Authorization. Neither the execution,
delivery nor performance by Seller or Shareholder of this Agreement or the
Conveyance Documents requires any consent, approval, license or other action by
or in respect of, or registration, declaration or filing with, any governmental
body, agency, official or authority other than the filing of the Certificate of
Amendment to Seller's articles of incorporation (to change Seller's name) with
the office of the Secretary of Senate of Pennsylvania and the filing of the
Certificate of Amendment to
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the foreign qualification with the office of the Secretary of State of each
jurisdiction set forth on Schedule 3.1, as contemplated by Section 5.5.
3.4. Non-Contravention. None of the execution, delivery and
performance by Seller or Shareholder of this Agreement or the Conveyance
Documents does or will (i) contravene or conflict with the articles of
incorporation or bylaws of Seller, (ii) contravene or conflict with or
constitute a violation of any provision of any Law or judgment, injunction,
order, writ or decree binding upon or applicable to Seller or Shareholder, or
any part of the Purchased Assets or the Business, (iii) constitute a material
default (with or without the giving of notice or the passage of time or both)
under or breach of or violate or give rise to any right of termination,
cancellation or acceleration of any right or obligation of Seller or Shareholder
or to a loss of any benefit relating to the Business to which Seller or
Shareholder is entitled under any provision of any agreement, commitment,
arrangement, contract or other instrument binding upon Seller or Shareholder or
by which any of the Purchased Assets is or may be bound or any Permit, or (iv)
result in the creation or imposition of any Lien on any Purchased Asset.
3.5. Seller Capitalization. Seller is authorized to issue
10,000 shares of stock, $1.00 par value per share, of which 5,000 are Class A
Common Stock and 5,000 are Class B Common Stock. Shareholder owns, beneficially
and of record 100 shares of Class A Common Stock of Seller free and clear of all
Liens, which constitutes all of the outstanding shares of capital stock of
Seller.
3.6. Subsidiaries. Except as set forth on Schedule 3.6, Seller
does not own and has never owned directly or indirectly, securities or other
ownership interests in any other entity. Seller is not a party to any agreement
relating to the formation of any joint venture, association or other entity.
3.7. Consents. The Contracts listed on Schedule 3.7 are the
only agreements, commitments, arrangements, contracts or other instrument
binding upon Seller or Shareholder or by which any of the Purchased Assets are
bound, requiring a consent, approval, authorization, order or other action of or
filing with any Person as a result of the execution, delivery and performance of
this Agreement or any of the Conveyance Documents or the consummation of the
transactions contemplated hereby or thereby (each of the foregoing, a "Seller
Consent").
3.8. Financial Statements. (a) Attached hereto as Schedule 3.8
are the (i) unaudited balance sheets of Seller as of December 31, 1997 (the
"Year-End Balance Sheet"), December 31, 1996 and December 31, 1995, and (ii)
statements of operations and retained earnings and cash flow statements of
Seller for the years ended December 31, 1997, and December 31, 1996 and the nine
months ended December 31, 1995, respectively, reviewed, in the case of the Year-
end Balance
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Sheet, statements of operations and retained earnings and cash flow statements
for the year ended December 31, 1997, by BDO Seidman, LLP, accountants to
Seller, and in the case of the year ended December 31, 1996 and the nine months
ended December 31, 1995, by Miller, Glusman, Footer & Magarick, P.C.,
accountants to Seller (collectively, the "Financial Statements"). The Financial
Statements are complete and accurate and fairly present, in conformity with GAAP
applied on a consistent basis, the financial position of Seller as of the dates
thereof and the results of operations of Seller for the years then ended.
(b) Except as specifically disclosed, reflected or fully
reserved against on the Year-End Balance Sheet and for liabilities and
obligations of a similar nature and in similar amounts incurred in the ordinary
course of business since the date of the Year-End Balance Sheet, there are no
liabilities or obligations of any nature (whether accrued, absolute, contingent,
unasserted or otherwise) relating to Seller. All liabilities which should be
included under GAAP on an accrual basis on the Year-End Balance Sheet are
included therein.
(c) The Year-End Balance Sheet accurately reflects the
outstanding debt of Seller as of the date thereof. On December 31, 1997 Seller
had no indebtedness for borrowed money except $400,000 under the commercial line
of credit and $30,734 outstanding on the term loan extended by Commerce
Bank/Pennsylvania, N.A. As of the Closing Date there are no advances or interest
outstanding under the commercial line of credit advanced by Commerce
Bank/Pennsylvania, N.A. and $22,398 is outstanding under the term loan extended
by the same.
(d) On the Closing Date there will be no loans, advances
or borrowings that constitute Shareholder Loans except as set forth in the
Certificate delivered to Buyer and True North pursuant to Section 9.2(a).
3.9. Absence of Certain Changes. (a) Since December 31, 1997,
Seller has conducted the Business in the ordinary course consistent with past
practices, and there has not been:
(i) any Material Adverse Change or any event, occurrence,
development or state of circumstances or facts which could reasonably be
expected to result in a Material Adverse Change; or
(ii) any transaction, contract, agreement or other
instrument entered into, or commitment made, by Seller relating to the
Business or any Purchased Asset (including the acquisition or disposition
of any assets) or any relinquishment by Seller of any contract or other
right, in either case other than transactions and commitments in the
ordinary course of
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business consistent with past practices and those contemplated by this
Agreement.
(b) Since December 31, 1997 through and including the date
hereof, Seller has not taken any action nor has any event occurred which would
have violated Seller's covenants set forth in Section 5.1 herein if such action
had been taken or such event had occurred between the date hereof and the
Closing Date.
3.10. Properties; Title to the Purchased Assets. (a) The
Tangible Assets have no material defects, are in generally good operating
condition and repair (ordinary wear and tear excepted) and have been reasonably
maintained, and are suitable for their present uses. Schedule 2.1(iii) sets
forth a complete list of Tangible Assets as of a date within three days of the
date of this Agreement. All of the Tangible Assets are located at the offices of
Seller.
(b) Seller has, and upon consummation of the transactions
contemplated hereby Buyer will have acquired, good and marketable title in and
to, or, in the case of the Office Leases and the assets which are leased or
licensed pursuant to Contracts, a valid leasehold interest or license in, each
of the Purchased Assets or such other assets, free and clear of all Liens. The
Purchased Assets and the assets covered by the Contracts constitute all of the
assets, including good will, used or useful in the Business, other than the
Excluded Assets.
3.11. Litigation. There is no action, suit, investigation,
hearing or proceeding (or any basis therefor) pending against, or to the best
knowledge of Seller threatened against or affecting, Seller, any of its
officers, directors, or Shareholder, the Business or any Purchased Asset or any
Contract before any court or arbitrator or any governmental body, agency
official or which in any manner challenges or seeks to prevent, enjoin, alter or
delay the transactions contemplated hereby. There are no outstanding judgments
against Seller.
3.12. Contracts. To the best of Seller's and Shareholder's
knowledge, each Contract is a valid and binding agreement, and is in full force
and effect, and no party thereto is in breach or default (whether with or
without the passage of time or the giving of notice or both) under the terms of
any such Contract. Seller has not assigned, delegated, or otherwise transferred
any of its rights or obligations with respect to any Contracts, or granted any
power of attorney with respect thereto or to any Purchased Asset. No client
Contract requires Seller to post a bond or deliver any other form of security or
payment to secure its obligations thereunder. Seller has given true and correct
copies of each Contract to Buyer.
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The Contracts constitute all the material agreements,
arrangements, understandings and other instruments in effect to which Seller is
a party, including, without limitation:
(i) all client Contracts which have generated revenues
to Seller or are expected to generate revenues to Seller in excess of $20,000 in
the current fiscal year or any of the two preceding fiscal years of Seller;
(ii) any other Contract pursuant to which Seller is
required to pay, have paid or entitled to receive or have received an amount in
excess of $20,000 during the current fiscal year or any one of the two preceding
fiscal years; and
(iii) all agreements relating to real and tangible
personal property.
3.13. Licenses and Permits. Schedule 3.13 correctly lists each
license, franchise, permit or other similar authorization affecting, or relating
in any way to, the Business, together with the name of the government agency or
entity issuing such license or permit (the "Permits"). Such Permits are valid
and in full force and effect and, assuming the related Seller Consents have been
obtained prior to the Closing Date, are transferable by Seller, and none of the
Permits will, assuming the related Seller Consents have been obtained or waived
prior to the Closing Date, be terminated or impaired or become terminable as a
result of the transactions contemplated hereby, except as set forth on Schedule
3.13.
3.14. Compliance with Laws. (a) Seller is not in violation of,
has not violated, and to Seller's best knowledge, is neither under investigation
with respect to nor has been threatened to be charged with or given notice of
any material violation or alleged violation of, any Law, or judgment, order or
decree entered by any court, arbitrator or governmental authority, domestic or
foreign.
(b) Without liming the foregoing paragraph, Seller is not in
violation of, has not violated, and to Seller's best knowledge is neither under
investigation with respect to nor has been threatened or charged with or given
notice of any violation of any provisions of:
(i) the Foreign Corrupt Practices Act including,
without limitation, provisions relating to payments to foreign officials,
contributions for foreign political office, and the internal record-keeping
requirements of the Foreign Corrupt Practices Act;
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(ii) the Ethics in Government Act;
(iii) the Lobbying Disclosure Act; and
(iv) any comparable or similar Law of any jurisdiction.
No permit, license or registration is required by Seller in the conduct of the
Business under any of the laws described in this Section 3.14(b).
3.15. Intellectual Property. (a) Schedule 3.15 sets forth a true
and complete list of all Intellectual Property Rights, specifying as to each, as
applicable: (i) the nature of such Intellectual Property Right; (ii) the owner
of such Intellectual Property Right; (iii) the jurisdictions by or in which such
Intellectual Property Right has been issued or registered or in which an
application for such issuance or registration has been filed; and (iv) all
licenses, sublicenses and other agreements pursuant to which any Person is
authorized to use such Intellectual Property Right.
(b) Within the past five years (or prior thereto if the same
is still pending or subject to appeal or reinstatement) Seller has not been sued
or charged in writing with or been a defendant in any claim, suit, action or
proceeding that involves a claim of infringement of any Intellectual Property
Rights, and Seller has no knowledge of any other claim of infringement by
Seller, and no knowledge of any continuing infringement by any other Person of
any Intellectual Property Rights.
(c) The current use by Seller or any of its Affiliates of the
Intellectual Property Rights does not infringe the rights of any other Person.
(d) "The Marriott Business Travel Institute" and the
Intellectual Property Rights associated therewith have not been used in
connection with the Business since December 31, 1995 and the Company has never
earned any income or incurred any liabilities with respect thereto.
3.16. Clients; Billings. The list of Seller's clients, which
together with related billing information, is attached hereto as Schedule 3.16,
is true and complete. Except as indicated on Schedule 3.16, Seller has not been
notified, of the probability or actuality or otherwise have any reason to
believe that any of its clients that had billings in excess of $50,000 in its
1997 fiscal year (as shown on Schedule 3.16) intends to or will cancel,
substantially limit, terminate or materially modify the terms of its business
relationship with, or substantially reduce its billings with, Seller (or, after
the Closing, with Buyer).
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3.17. Accounts Receivable. All accounts receivable of Seller, whether
reflected on Schedule 2.1(x) or otherwise, represent valid obligations arising
from services actually performed by Seller in the ordinary course of business.
To the best of Seller's and Shareholder's knowledge, there is no contest, claim,
or right of setoff in any agreement with any maker of an account receivable
relating to the amount or validity of such account receivable. Except as set
forth on Schedule 3.17, to the best knowledge of Seller all accounts receivable
are good and collectible in the ordinary course of business.
3.18. Deposits. Except as set forth on Schedule 3.18, Seller has not
received any payments with respect to any services to be rendered or goods to be
provided after the Closing.
3.19. Employees. (a) Schedule 3.19(a) sets forth a true and complete
list of the names, titles, annual salaries or wage rates and other compensation
and office location of all employees of Seller, indicating part-time and full-
time employment and all changes in salaries and wage rates per employee since
January 1, 1997. Neither Seller nor Shareholder has promised any employee,
consultant or agent of Seller that he or she will be employed by or receive any
particular benefits from Buyer or any of its Affiliates on or after the Closing.
(b) Seller is not a party to or subject to any employment contract,
consulting agreement, collective bargaining agreement, confidentiality agreement
restricting the activities of Seller, non-competition agreement restricting the
activities of Seller, or any similar agreement, and to the best of Seller's
knowledge there has been no activity or proceeding by a labor union or
representative thereof to organize any employees of Seller.
3.20. Benefit Plans. (a) Schedule 3.20 sets forth a true and complete
list of all employee benefit plans (including agreements) covering present and
former employees of Seller and of each of its subsidiaries, including, but not
limited to, any employee benefit plan within the meaning of Section 3(3) of
ERISA, any stock option or appreciation plan, bonus plan, fringe benefit, and
any deferred compensation plan. With respect to each such plan, Seller has
provided Buyer with a true and complete copy of the plan document and summary
plan description and, where applicable, the most recent Form 5500 filed for the
plan.
(b) Except as disclosed in Schedule 3.20, neither Seller nor any of
its ERISA Affiliates, as hereinafter defined, has incurred (nor has any event
occurred or condition been incurred or a claim been threatened which reasonably
can be anticipated to result in a Seller or any of its ERISA Affiliates
incurring) any material loss or liability in connection with any existing or
previously existing employee benefit plan which could become, on or after the
Closing Date, an
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obligation or liability of Buyer or any of its affiliates or which has or could
give rise to any liens on any of the Purchased Assets. Without limiting the
foregoing, (i) Seller is not individually or jointly and severally liable for
any material liability relating to any employee benefit plan maintained or
formerly maintained by Seller or by an ERISA Affiliate, (ii) to the best
knowledge of Seller, no plan described in clause (i) is severely underfunded or
otherwise is reasonably likely to result in material liability to Seller, and
(iii) Seller does not currently and has not in the last six years contributed to
any "multiple employer plan", as such term is defined in Section 3(37) of ERISA.
For purposes hereof, the term "ERISA Affiliate" means a person or entity which,
together with Seller, are treated as a single employer under Section 414 of the
Internal Revenue Code.
(c) Each plan maintained by Seller which is a group health plan,
within the meaning of Section 607 of ERISA, has been operated in compliance with
the requirements of Sections 601 through 608 of ERISA ("COBRA"). Except as
required by COBRA, Seller does not maintain any plan or other arrangement which
provides for post-termination of employment health or other welfare benefits.
3.21. Shareholder Transactions. Except as set forth on Schedule 3.21,
there are no Contracts or other arrangements of any nature between Seller and
Shareholder.
3.22. Real Property. Seller does not own, or otherwise have an
interest in, any real property except for the Office Leases. Seller has good,
valid and subsisting title to the leasehold estates in the offices described in
Section 3.1, free and clear of all Liens. Seller has not breached or violated
and is not in default under any Office Lease or, to the best of Seller's
knowledge, any local zoning ordinance, and no notice from any Person has been
received by Seller or served upon Seller claiming any violation of the Office
Leases or any local zoning ordinance.
3.23. Accounts. Schedule 3.23 sets forth a true and complete list of
the Company's checking accounts, deposit accounts, safe deposit boxes, and
brokerage accounts, including the account number and name, the name of each
depositary or financial institution and the address where such account is
located and the authorized signatories thereto.
3.24. Tax Matters. Seller timely has paid and timely will pay all
Taxes, and all interest and penalties due thereon and payable by it for all
periods ending on or prior to December 31, 1997, the non-payment of which would
result in a Lien on any Purchased Asset, would otherwise adversely affect the
Business or would result in Buyer becoming liable or responsible therefor.
Seller will timely pay all Taxes based on net income which arise from or with
respect to the Purchased Assets or the operation of the Business and are
incurred in or attributable to the
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period between January 1, 1998 and the Closing Date and which are payable after
the Closing Date, the non-payment of which would result in a Lien on any
Purchased Asset, would otherwise adversely affect the Business or would result
in Buyer becoming liable therefor.
3.25. Environmental Laws. Seller has complied in all material respects
with and is in compliance in all material respects with all Laws of any
governmental entity relating to pollution or the protection of the environmental
or human health or hazardous materials ("Environmental Laws"), and there is not
and there has not been at any time any notice, demand, request for information,
complaint, order, investigation, or review pending or, to the best knowledge of
Seller, threatened by any governmental entity with respect to any alleged
violation by Seller of any Environmental Law. Seller has not been requested by
any governmental body, agency, official or authority to pay any sum of money, or
otherwise aid or take any action or refrain from taking actions, to abate or
remediate any environmental occurrence or condition (including without
limitation removal of asbestos or any other potentially hazardous substance).
3.26. Finders' Fees. There is no investment banker, broker, finder or
other intermediary which has been retained by or is authorized to act on behalf
of Shareholder, Seller or any of its Affiliates who might be entitled to any fee
or commission from Buyer or any of its Affiliates upon consummation of the
transactions contemplated by this Agreement.
3.27. Investment Representations.
(a) Each of Seller and Shareholder is an "accredited investor"
within the meaning of Rule 501 of Regulation D under the Securities Act and has
sufficient knowledge and experience in investing in companies similar to True
North so as to be able to evaluate the risks and merits of the investments in
True North;
(b) Each of Seller and Shareholder is able to financially bear
the risks of loss of its entire investment in True North Common Stock issuable
as part of the Purchase Price hereunder;
(c) Seller is acquiring the Shares for its own account and not
with a view to or for sale in connection with any distribution thereof;
(d) Each of Seller and Shareholder understands that (i) the
Shares have not been registered under the Securities Act by reason of their
issuance in a transaction exempt from the registration requirements of the
Securities Act pursuant to Section 4(2) thereof or Rule 505 or 506 thereunder,
(ii) such
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securities may not be disposed of unless a subsequent disposition is registered
under the Securities Act or is exempt from registration, (iii) such securities
will bear a customary legend to such effect; and (iv) with respect to the
Shares, True North will make a notation on its stock transfer books to such
effect; and
(e) Each of Seller and Shareholder has had a full and complete
opportunity to inquire and examine all information deemed by it to be relevant
and material to make an informed decision about the transactions contemplated in
this Agreement. Each of Seller and Shareholder acknowledges and agrees that it
is not relying upon any representations or warranties of the Buyer or True North
except the representations and warranties specifically set forth in this
Agreement.
3.28. Other Information. Neither this Agreement nor any of the
schedules hereto or any other information provided by Seller or Shareholder to
Buyer or its Affiliates, attorneys, accountants, agents or representatives in
connection with Buyer's due diligence review of the Business contains any untrue
statement by Seller or Shareholder of a material fact or omits or will omit to
state a material fact necessary in order to make the statements contained
therein by Seller or Shareholder not misleading. Seller has provided Buyer all
material information regarding the Business requested by Buyer.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer and True North hereby jointly and severally represent and
warrant to Seller that:
4.1. Corporate Existence and Power. Buyer is a corporation duly
organized, validly existing and in good standing under the Laws of Delaware.
True North is a Corporation duly organized, validly existing and in good
standing under the Laws of Delaware.
4.2. Corporate Authorization. The execution, delivery and performance
by Buyer and True North of this Agreement and the consummation by Buyer and True
North of the transactions contemplated hereby are within the corporate powers of
Buyer and True North and have been duly authorized by all necessary corporate
action on the part of Buyer and True North. This Agreement, and upon execution
and delivery of the Conveyance Documents, the Conveyance Documents, constitute a
valid and legally binding agreement of Buyer and True North, enforceable against
each of them in accordance with its terms.
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4.3. Authorization. The execution, delivery and performance by Buyer
and True North of this Agreement requires no action by or in respect of, or
filing with, any governmental body, agency, official or authority or any other
Person by Buyer or True North except for any filings required to be made with
the New York Stock Exchange and the Pennsylvania Securities Commission and the
filing of a Registration Statement with the SEC pursuant to Section 7 hereof.
4.4. Issuance of the Shares. The Shares, when issued in accordance
with this Agreement, will be duly authorized and validly issued, and will be
fully paid and nonassessable and free of all Liens.
4.5. Registration of the Shares. True North meets the requirements for
using Form S-3 under the Securities Act.
4.6. Non-Contravention. The execution, delivery and performance by
Buyer and True North of this Agreement do not and will not (i) contravene or
conflict with the certificate of incorporation or bylaws of Buyer or True North,
(ii) contravene or conflict with any provision of any Law, judgment, injunction,
order, writ, or decree binding upon Buyer or True North or (iii) assuming the
obtaining of all Buyer Consents, constitute a default under or breach of any
agreement, contract or other instrument binding upon Buyer or True North.
4.7. Finders' Fees. There is no investment banker, broker, finder or
other intermediary which has been retained by or is authorized to act on behalf
of Buyer, True North or any of its Affiliates who might be entitled to any fee
or commission from Seller or any of its Affiliates upon consummation of the
transactions contemplated by this Agreement.
4.8. Other Information. This Agreement does not contain any untrue
statement of a material fact by Buyer or True North or omits to state a material
fact necessary in order to make the statements contained herein by Buyer or True
North not misleading.
4.9. SEC Filings. The SEC Filings do not contain any untrue statement
of a material fact or omit to state any material fact necessary to make any
statement contained therein, under the circumstances in which it is made, not
misleading. True North has made all filings required to be made of it under the
Securities Exchange Act of 1934, as amended.
4.10. Absence of Material Adverse Change. Since the date of the latest
SEC Filing, there has not been: (a) any material adverse change in the condition
(financial or otherwise), results of operations, business, prospects, assets or
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liabilities of True North; or (b) any event that would require True North to
file a Current Report on Form 8-K.
ARTICLE V.
COVENANTS OF SELLER AND SHAREHOLDER PENDING CLOSING
Seller and Shareholder jointly and severally covenant and agree that:
5.1. Conduct of the Business. From the date hereof until the Closing
Date, Seller shall conduct the Business only in the ordinary course, consistent
with past practices and will not enter into any material transactions without
the prior written consent of Buyer (which consent shall not be unreasonably
withheld), and shall use its best efforts to preserve intact the business
relationships with employees, clients, suppliers and other third parties.
Without limiting the generality of the foregoing, from the date hereof until the
Closing Date, without Buyer's prior written consent (which consent shall not be
unreasonably withheld) Seller will not:
(a) amend, waive any provision of, terminate prior to its scheduled
expiration date, or otherwise compromise in any way, any Contract (including
contracts described in clause (b) below), or any other right or asset of Seller
that is or otherwise would have been a Purchased Asset, provided, however that
Seller shall be permitted to terminate its sublease for the premises located at
200 South Broad Street, Philadelphia, Pennsylvania (the "Philadelphia Lease");
(b) enter into any contract, agreement, lease, license or commitment
(including without limitation any leases of real property), which (i) is with
respect to real property, (ii) extends for a term of one year or more or (iii)
obligates the payment of more than $100,000 (individually or in the aggregate);
(c) make any capital expenditures in excess of $100,000 (individually
or in the aggregate);
(d) sell, lease, license or otherwise dispose of any Purchased Assets
or assets covered by any Contract except (i) pursuant to existing contracts or
commitments disclosed herein and (ii) in the ordinary course consistent with
past practice;
(e) pay, declare or promise to pay any dividends or other
distributions with respect to its capital stock, or pay, declare or promise to
pay any
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other payments to Shareholder, other than amounts consistent with Schedule
3.19(a) and other than Shareholder Loans;
(f) authorize any salary increase of more than 10% for any employee
making an annual salary of greater than $50,000;
(g) obtain any bank loan or make any guarantee including, but not
limited to, drawings under Seller's existing line of credit with Commerce
Bank/Pennsylvania, N.A.;
(h) suffer or incur any Lien on any Purchased Asset;
(i) delay or accelerate or cancel any receivables or indebtedness owed
to Seller or writeoff or make further reserves against the same;
(j) merge or consolidate with or acquire any other entity or be
acquired by any other Person;
(k) suffer any insurance policy protecting the Purchased Assets to
lapse without comparable replacement insurance; or
(l) agree to do any of the foregoing.
Seller will not (i) take or agree to take any action that would make any
representation or warranty of Seller hereunder inaccurate in any respect at, or
as of any time prior to, the Closing Date or (ii) omit to take, or agree to omit
to take, any action necessary to prevent any such representation or warranty
from being inaccurate in any respect at any such time.
5.2. Access to Information. From the date hereof until and including
the Closing Date, Seller (a) will continue to give Buyer, its counsel and other
representatives full access to the offices, properties, books and records of
Seller relating to the Business, (b) will furnish to Buyer, its counsel and
other representatives such information relating to the Business as such Persons
may reasonably request and (c) will instruct the employees, counsel, accountants
and representatives of Seller to cooperate with Buyer in its investigation of
the Business; provided that no investigation pursuant to this Section (or any
investigation prior to the date hereof) shall affect any representation or
warranty given by Seller; and provided further that any investigation pursuant
to this Section shall be conducted in such manner as not to interfere
unreasonably with the conduct of the business of Seller.
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5.3. Notices of Certain Events. Seller shall promptly notify Buyer
of:
(i) any notice or other communication from any Person alleging
that the consent of such Person is or may be required in connection with
the transactions contemplated by this Agreement;
(ii) any notice or other communication from any governmental or
regulatory agency or authority in connection with the transactions
contemplated by this Agreement;
(iii) any actions, suits, claims, investigations or proceedings
commenced or, to the best of its knowledge threatened against, relating to
or involving or otherwise affecting Seller or the Business that, if pending
on the date of this Agreement, would have been required to have been
disclosed pursuant to Section 3.11 or that relate to the consummation of
the transactions contemplated by this Agreement; and
(iv) the occurrence of any fact or circumstance which would make
any representation made hereunder by Seller and/or Shareholder false in any
material respect or result in the omission or the failure to state a
material fact.
5.4. Exclusivity. So long as this Agreement is in effect, neither
Seller nor Shareholder shall, directly or indirectly, (i) encourage, solicit,
initiate or participate in discussions or negotiations with, or provide any
information to any Person, other than Buyer or its Affiliates (collectively
"Excluded Persons"), or an officer, partner, employee or other authorized
representative of an Excluded Person, concerning the sale of the Purchased
Assets or (ii) otherwise solicit, initiate or encourage the submission of any
proposal contemplating the sale of the Purchased Assets. Seller or Shareholder
shall promptly (within 24 hours) communicate to Buyer the terms of any proposal
which it may receive in respect of a sale of the Purchased Assets. The Seller's
or Shareholder's notice under this Section 5.4 shall include the identity of the
person making such proposal or offer, copies (if written) or a written
description of the terms (if oral) thereof and any other such information with
respect thereto as the Buyer may reasonably request.
5.5. Transfer of Name. Seller shall secure and transfer to Buyer all
of the rights in the name "B.P Tierney & Associates, Inc.," owned by Seller
including but not limited to any trademark registration or application for such
name.
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5.6. Termination of 401(k) Plan. Seller shall terminate its
401(k) plan prior to Closing.
ARTICLE VI.
POST CLOSING COVENANTS
6.1. Seller and Shareholder jointly and severally covenant and
agree that:
6.1.1. Confidentiality. Except as otherwise required by law, on
and after the Closing, Seller and Shareholder shall not, without the prior
written consent of Buyer, or a person authorized thereby, disclose to any
other person or use (whether for the account of Seller or Shareholder or
any other party) any confidential information or proprietary work product
of Seller or any client of Seller. In the event Seller or Shareholder
believes that it is required to disclose any such confidential information
pursuant to applicable Laws, Seller or Shareholder shall give timely
written notice to Buyer so that Buyer may have an opportunity to obtain a
protective order or other appropriate relief.
6.1.2. Change of Name; Wind-Up of Seller.
(a) From and after the Closing, Seller shall cease using and
shall not authorize or permit the use of, the words "BP Tierney &
Associates, Inc. t/a The Tierney Group" or any derivatives or abbreviations
thereof (the "Tierney Name") as the name of any business (including any
trade name or fictitious name however denominated) that is substantially
similar to the Business. Provided, however, that if Buyer and its
Affiliates cease the use of or abandon for a period of two years the
Tierney Name as the name under which they actively conduct their business,
then the foregoing provisions of this Section 6.1.2(a) shall terminate and
be of no further force and effect, and Shareholder shall have the full and
unlimited right to use the Tierney Name.
(b) From and after the Closing, Seller shall cease to conduct
business, and its only activity shall be to pay the Excluded Liabilities
and otherwise to wind up its business and affairs in a prompt and orderly
fashion.
6.1.3. Performance of Excluded Liabilities. Seller timely shall
pay or perform, as applicable, all liabilities and obligations that
constitute Excluded Liabilities, including without limitation those
relating to Contracts and Taxes payable on earnings earned by Seller prior
to the Closing.
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6.1.4. No Distributions. Except as otherwise provided in Section
13.16 Seller shall not distribute with respect to its capital stock the
Shares to any person other than Shareholder.
6.1.5. Licenses and Permits. Seller and Shareholder shall notify
the Secretary of the Senate of the Commonwealth of Pennsylvania of the
transfer of the lobbyist registrations listed on Schedule 3.13.
6.2. Buyer and True North jointly and severally covenant and
agree that:
6.2.1. Operations of the Business During the Earnout Periods.
During the Earnout Periods, True North and Buyer agree:
(a) that Buyer and True North or any Affiliate of Buyer or
True North shall not voluntarily cause or allow any significant change in
the Business as conducted by Seller prior to the Closing, and Buyer and
True North and any Affiliate of Buyer and True North, shall conduct the
Business in the ordinary course, consistent with prior practices, but in
any event consistent with True North's policies and practices;
(b) that Buyer shall maintain such separate records for the
Business as necessary to permit Buyer and Shareholder to mutually calculate
the Profit Before Taxes and the Tax Payment amounts as provided for
pursuant to this Agreement;
(c) that the Business of the Company shall be conducted under
the name "B.P. Tierney & Associates, Inc. t/a The Tierney Group" or any
derivation thereof or under any other name as Buyer shall determine in good
faith;
(d) at any time or from time to time, Shareholder and his
representatives shall have access to, and the right to make copies of and
extracts from, the books and records of the Buyer for the purposes of (a)
verifying the amount of the Earnout Payments and (b) defending against or
protesting any inquiry or claims made by Buyer, True North, any third party
or any government authority, relating to this Agreement or the operations
of the Business. Neither the Buyer or True North shall destroy or otherwise
dispose of any of the books, records, accounts, ledgers, contracts or
documents of the Buyer, or permit the destruction or disposition of the
same, without Shareholder's written consent.
6.2.2. Right of First Refusal. If at any time during the
period during which Seller is entitled to receive the Earnout Payments,
Buyer or True North
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receive a bona fide arms-length offer from an unaffiliated third party, to
purchase the Business, Buyer and True North shall deliver notice of such offer
to Seller and Shareholder specifying such transaction in reasonable detail, and
Seller and Shareholder shall have thirty (30) days to agree to purchase the
Business on the same terms and conditions as contained in the third party offer.
6.2.3. Continuity of Benefits. Subject to applicable legal
requirements and the plan qualification requirements of Code Section 401, Buyer
(i) shall provide under its qualified 401(k) plan that all employees of Seller
who are hired by Buyer shall be credited with their periods of service with
Seller for purposes of satisfying eligibility and vesting requirements under
Buyer's plan; and (ii) shall allow each employee of Seller who is hired by Buyer
who so elects to directly roll over his or her account balance from Seller's
terminated 401(k) plan into Buyer's 401(k) plan.
6.3. Tax Matters. (a) Any transfer, documentary, sales, use or other
Taxes assessed upon or with respect to the transfer of the Purchased Assets to
Buyer and any recording or filing fees with respect thereto shall be shared
equally by Buyer and Seller.
(b) Seller shall be responsible for the filing of all Tax returns and
reports and for the payment of all Taxes based on the income of Seller for any
period ending on or prior to the Closing Date and the payment of all Taxes
attributable to or relating to the consummation of the transactions contemplated
hereby.
(c) Buyer shall be responsible for paying Taxes (other than Taxes
based on the net income of Seller) with respect to the operations of Seller for
the period from January 1, 1998 through the Closing.
ARTICLE VII.
COVENANTS OF BUYER
Buyer and True North covenant and agree that:
7.1. Registration of True North Common Stock.
(a) Registration Procedures. True North shall use its reasonable best
efforts to cause to be registered on Form S-3 under and in accordance with the
Securities Act (a "Registration") the Shares for purposes of the resale thereof
by Seller in ordinary brokerage transactions. In connection with such
Registration,
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True North will, as expeditiously as reasonably practicable, after the date of
this Agreement and in any case, within forty-five (45) days after the Closing
Date:
(i) prepare and file with the Securities and Exchange Commission (the
"SEC") a registration statement on Form S-3 under the Securities Act
covering the Shares (a "Registration Statement") and use its reasonable
best efforts to cause such Registration Statement to become effective as
promptly after the Closing Date as reasonably practicable and to remain
effective as provided herein and shall use its reasonable best efforts to
comply with the Securities Act of 1933, as amended (the "Securities Act")
and the rules and regulations of the SEC in preparing and filing such
Registration Statement;
(ii) prepare and file with the SEC such amendments and post-effective
amendments to the Registration Statement as may be necessary to keep the
Registration Statement effective for a one (1) year period from the Closing
Date (or such earlier time by when the shares are disposed of); cause the
prospectus which is part of the Registration Statement ("Prospectus") to be
supplemented by any required Prospectus supplement, and as so supplemented
to be filed pursuant to Rule 424 under the Securities Act; and comply with
the provisions of the Securities Act applicable to it with respect to the
disposition of all securities covered by such Registration Statement during
such one (1) year period;
(iii) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of the Registration Statement at the
earliest practicable time; and
(iv) on or prior to the date on which the Registration Statement is
declared effective, use its reasonable best efforts to register or qualify
the True North Common Stock covered by such Registration Statement under
the securities laws of the Commonwealth of Pennsylvania (unless the sale of
the Shares by Seller is exempt from registration thereunder) and to list
the Shares on the New York Stock Exchange.
Notwithstanding the foregoing, True North shall be entitled to
postpone any registration, qualification or compliance under any Federal or
state securities laws, or to prohibit the use of any Prospectus forming a part
of any effective Registration Statement, for a period of up to ninety (90) days,
or such additional period as may be required, if a valid corporate purpose
exists for doing so in the good faith business judgment of True North,
including, without limitation, for the purpose of withholding the public release
of information which in the reasonable judgment of True North would be required
to be disclosed in such Prospectus.
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(b) Obligations of Seller.
(i) Seller will furnish to True North in writing such information
and affidavits as True North may reasonably request or as may be required
in connection with any registration, qualification or compliance with
respect to the Shares. Seller shall give prompt notice to Buyer of each
sale by Seller of the Shares registered pursuant to the Registration
Statement.
(ii) Seller will not sell any Shares issued to Seller hereunder
until a Registration Statement covering the same shall become effective and
the same shall have been qualified for sale under applicable state
securities laws, except pursuant to applicable exemptions. Immediately on
notice from True North, Seller will cease sales of the Shares, for so long
as True North shall advise Company such cessation is required under
applicable Federal or state securities laws. Seller shall not adopt any
plan to dissolve Seller or distribute the Shares to its shareholders until
after at least one year from the Closing Date except to the extent that
such dissolution and distribution qualifies as an exempt transaction under
the Securities Act and the transferees deliver a certificate to True North
making the same representations and warranties contained in Section 3.27
herein.
(iii) At the end of any period during which True North keeps any
Registration Statement current and effective as provided by Section
7.1(a)(ii) hereof, Seller shall discontinue sales of the Shares pursuant to
such Registration Statement and the Company shall notify True North of the
number of the Shares registered which remain unsold at the end of such
period.
(c) Registration Expenses. All of the costs and expenses of the
registration hereunder will be borne by True North, including all registration
and filing fees, the fees and expenses of True North's counsel and accountants
and all other costs and expenses incident to True North's performance of or
compliance with this Agreement, including without limitation the preparation,
printing (or otherwise duplicating) and filing under the Securities Act of the
Registration Statement (and all amendments and supplements thereto) and
furnishing a reasonable number of copies thereof and of the Prospectus included
therein, and the costs and expenses incurred in connection with the
qualification of the Shares issued to Seller hereunder under the securities laws
of the Commonwealth of Pennsylvania; provided, that True North shall not bear
costs and expenses comprising brokerage fees or commissions, transfer taxes, the
fees and expenses of any counsel, accountants or other representatives retained
by Seller, or any fees, costs or expenses required to be borne by Seller under
state securities laws.
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(d) Indemnification.
(i) True North shall indemnify and hold harmless
Shareholder, Seller and its officers and directors and each Person who
controls Seller (within the meaning of the Securities Act or the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) and the persons or
entities described in Section 13.16, against any Losses, caused by any
untrue or alleged untrue statement of a material fact contained in any
Registration Statement, Prospectus, or preliminary Prospectus or any
amendment or supplement to any of the foregoing or any omission or alleged
omission to state therein a material fact necessary to make the statements
therein (in the case of the Prospectus or any preliminary Prospectus, in
light of the circumstances under which they were made) not misleading,
except insofar as the same are caused solely by (A) or contained in any
written information furnished to True North or Buyer by Seller in
connection with the preparation of such Prospectus, (B) violation by Seller
of Section 7.1(b), or (C) the failure of Seller to deliver a copy of the
Registration Statement or Prospectus or any amendment or supplement thereto
after True North has furnished Seller with a copy thereof.
(ii) Seller and Shareholder, jointly and severally, agree to
indemnify and hold harmless, to the full extent permitted by law, Buyer,
True North, its directors and officers and each Person who controls True
North (within the meaning of the Securities Act and the Exchange Act)
against any Losses resulting solely from (A) any untrue or alleged untrue
statement of a material fact or any omission or alleged omission to state a
material fact necessary to make the statements in the Registration
Statement or Prospectus or preliminary Prospectus (in the case of the
Prospectus or any preliminary Prospectus, in light of the circumstances
under which they were made) not misleading to the extent that such untrue
statement or omission was made in reliance upon written information
furnished by Seller or Shareholder in connection with the preparation of
such Prospectus or (B) the breach of any covenant in Section 7.1(b).
(iii) Any Person entitled to indemnification hereunder will
(A) give prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification, and (B) unless in such
indemnified party's reasonable judgement a conflict of interest may exist
between such indemnified and indemnifying parties with respect to such
claim, permit such indemnifying party to assume the defense of such claim
with counsel reasonably satisfactory to the indemnified party. Whether or
not such defense is assumed by the indemnifying party, the indemnifying
party will not be subject to any liability for any settlement made without
its consent (but such consent will not be unreasonably withheld). The
failure of an indemnified party to give notice pursuant to clause (A) above
shall not relieve any indemnifying party of its obligations hereunder
except to the extent such indemnifying party is prejudiced by such failure.
No indemnifying party will consent
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to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in
respect of such claim or litigation. An indemnifying party who is not
entitled to, or elects not to, assume the defense of a claim will not be
obligated to pay the fees and expenses of more than one counsel for all
parties indemnified by such indemnifying party with respect to such claim,
unless, in the reasonable judgment of any indemnified party, a conflict of
interest may exist between such indemnified party and any other of such
indemnified parties with respect to such claim, in which event the
indemnifying party shall be obligated to pay the fees and expenses of such
additional counsel of counsels.
(iv) If for any reason the indemnification provided for in
the preceding clauses (i) and (ii) is unavailable to an indemnified party
as contemplated by the preceding clauses (i) and (ii), then the
indemnifying party shall contribute to the amount paid or payable as a
result of such Loss in such proportion as is appropriate to reflect not
only the relative benefits received by the indemnified party and the
indemnifying party, but also the relative fault of the indemnified party
and the indemnifying party, as well as any other relevant equitable
considerations.
7.2. Delivery of SEC Filings. True North will deliver to Seller,
no later than the Closing Date (or in case of the proxy statement as soon as it
is available) true and complete copies (excluding exhibits) of the following
documents, in each case as filed with the SEC: (a) True North's Annual Report on
Form 10-K for the year ended December 31, 1997; (b) True North's Proxy Statement
for its Annual Meeting of Stockholders to be held in 1998; (c) all Current
Reports on Form 8-K filed by True North with the SEC since January 1, 1998
(collectively, the "SEC Filings").
ARTICLE VIII.
COVENANTS OF ALL PARTIES HERETO
The parties hereto agree that:
8.1. Best Efforts; Further Assurances. (a) Subject to the terms
and conditions of this Agreement, each party will use its best efforts to take,
or cause to be taken, all actions and to do, or cause to be done, all things
necessary or desirable under applicable Laws to consummate the transactions
contemplated by this Agreement. The parties hereto each agree to execute and
deliver such other documents, certificates, agreements and other writings and to
take such other actions as may be necessary or desirable in order to consummate
or implement expeditiously
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the transactions contemplated by this Agreement and to vest in Buyer good and
marketable title to the Purchased Assets.
(b) Seller hereby constitutes and appoints, effective as of the
Closing, Buyer and its successors and assigns as the true and lawful attorney of
Seller with full power of substitution in the name of Buyer or in the name of
Seller, but for the benefit of Buyer for the limited purpose of (i) to collect
for the account of Buyer any items of Purchased Assets and (ii) to institute and
prosecute all proceedings which Buyer may in its sole discretion deem proper in
order to assert or enforce any right, title or interest in, to or under the
Purchased Assets, and to defend or compromise any and all actions, suits or
proceedings in respect of the Purchased Assets and the Contracts. Buyer shall be
entitled to retain for its own account any amounts collected pursuant to the
foregoing powers, including any amounts payable as interest in respect thereof.
8.2. Confidentiality of Transaction. Any information (except publicly
available or freely usable material obtained from another source) respecting any
party will be kept in strict confidence by all other parties to this Agreement
and their agents. Except as required by Law, Seller and any employees or agents
of Buyer and its Affiliates will not disclose the terms of the transactions
contemplated hereunder at any time, currently, on or after the Closing,
regardless of whether the Closing takes place, except as necessary to their
attorneys, accountants and professional advisors, in which instance such persons
and any employees or agents of Seller shall be advised of the confidential
nature of the terms of the transaction and shall themselves be required by
Seller to keep such information confidential. Except as required by Law, each
party shall retain all information obtained from the other and their lawyers on
a confidential basis except as necessary to their attorneys, accountants and
professional advisors, in which instance such persons and any employees or
agents of such party shall be advised of the confidential nature of the terms of
the transaction and shall themselves be required by such party to keep such
information confidential.
8.3. Best Efforts to Obtain Consents. Seller and Shareholder hereby
agree to use their best efforts to obtain each Seller Consent, and Buyer hereby
agrees to use its best efforts to obtain each Buyer Consent, in each case as
promptly as practicable hereafter.
8.4. Payments and Obligations. (a) If Buyer receives any payment
relating to Excluded Assets, then Buyer promptly shall forward such payment to
Seller; and if Seller receives any payment relating to the Purchased Assets,
then Seller promptly shall forward such payment to Buyer.
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(b) If Buyer receives bills or other demands for payment or
performance relating to Excluded Liabilities, then Buyer will promptly forward
such bills and demands to Seller, and Seller shall pay or perform such
obligations when due. If Seller receives bills or other demands for payment or
performance relating to Assumed Liabilities, then Seller promptly will forward
such bills and demands to Buyer, and Buyer shall pay or perform such obligations
when due.
ARTICLE IX.
CONDITIONS TO CLOSING
9.1. Condition to the Obligations of Buyer and Seller. The obligations
of Buyer and Seller to consummate the Closing are subject to the satisfaction of
the following conditions: (a) no provision of any applicable Law, and no
judgment, injunction, order or decree shall prohibit the consummation of the
Closing, (b) there shall not be pending any proceeding brought by a third-party
non-Affiliate to enjoin or otherwise restrict the consummation of the Closing.
9.2. Conditions to Obligations of Buyer. The obligation of Buyer to
consummate the Closing is subject to the satisfaction, or the waiver at Buyer's
discretion, of the following further conditions:
(a)(i) Seller and Shareholder shall have performed in all material
respects all of its obligations hereunder required to be performed by it at or
prior to the Closing Date, (ii) the representations and warranties of Seller and
Shareholder contained in this Agreement and in any certificate or other writing
delivered by Seller or Shareholder pursuant hereto, disregarding all
qualifications and exceptions contained therein relating to materiality or
Material Adverse Effect, shall be true at and as of the Closing Date, as if made
at and as of such date with only such exceptions as would not in the aggregate
reasonably be expected to have a Material Adverse Effect, (iii) there shall have
been no material adverse change to the Business or the Purchased Assets, and
(iv) Buyer shall have received a certificate signed by the President and Chief
Financial Officer of Seller and by Shareholder to the effect set forth in
clauses (i) and (ii) of this Section 9.2(a) and the amount of outstanding loans
or advances that constitute Shareholder Loans.
(b) All of the conditions to closing of True North set forth in
the Stock Purchase Agreement shall have been met.
(c) No court, arbitrator or governmental body, agency or official
shall have issued any order, or have pending before it a proceeding for the
issuance of any order, and there shall not be any statute, rule or regulation,
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restraining or prohibiting the consummation of the Closing or the effective
operation by Buyer of the Purchased Assets or the use of the Contracts after the
Closing Date.
(d) Buyer shall have received a duly executed Certificate of
Amendment in proper form for filing with the office of the Secretary of the
State of Pennsylvania to change the name of Seller to a name which is not
prohibited by Section 6.4.
(e) Buyer shall have received all documents it may reasonably
request relating to the existence of Seller and the authority of Seller for this
Agreement, all in form and substance reasonably satisfactory to Buyer,
including, without limitation, (i) a copy of the certificate of incorporation of
Seller certified as of a recent date by the Secretary of State of its
jurisdiction of organization, (ii) copies of Seller's bylaws as effective on the
date hereof; (iii) copies of resolutions duly adopted by the Board of Directors
of Seller and by the unanimous vote or consent of Seller's shareholders
authorizing this Agreement and the Conveyance Documents and the transaction
contemplated hereby and thereby, (iv) a certificate of the Secretary of Seller
certifying as to signatures of the officer(s) executing this Agreement and any
certificate or document to be delivered pursuant hereto, together with evidence
of the incumbency of such Secretary, and (v) a recent good standing certificate
regarding Seller from the office of the Secretary of State of the Commonwealth
of Pennsylvania and any other jurisdiction in which Seller is qualified to do
business.
(f) No provision of any applicable Law and no judgment,
injunction, order or decree shall restrain, prohibit or otherwise interfere with
the effective operation or enjoyment by Buyer of all or any material portion of
the Purchased Assets.
(g) Buyer shall have received all Buyer Consents, in form and
substance reasonably satisfactory to Buyer, and no such Buyer Consent shall have
been revoked, and Buyer shall have received all necessary corporate approvals of
Buyer and its Affiliates which Buyer shall use its best efforts to obtain.
(h) Buyer shall have received all Seller Consents, in form and
substance reasonably satisfactory to Buyer, and no such Seller Consent shall
have been revoked except for the consent of the landlord of the Seller's
sublease in Harrisburg and the clients set forth on Schedule 3.7.
(i) Seller shall have delivered to Buyer documents satisfactory to
Buyer to evidence the release of all Liens on any portion of the Purchased
Assets and the filing of appropriate UCC-3 Termination Statements or, in the
instance of the Lien filed by Commerce Bank, N.A., shall undertake to file such
statements subsequent to the Closing.
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(j) Shareholder shall have executed and delivered to True North an
employment agreement substantially in the form attached hereto as Exhibit C (the
"Employment Agreement"), between True North and Shareholder and the same shall
be in full force and effect.
(k) Seller shall have terminated the Philadelphia Lease.
(l) Blank Rome Comisky & McCauley LLP, counsel to Seller, shall
have delivered an opinion in the form of Exhibit D hereto.
(m) Shareholder and Seller shall have executed the Non-Compete
Agreement substantially in the form attached hereto as Exhibit E between Buyer,
True North, Shareholder and Seller and the same shall be in full force and
effect.
9.3. Conditions to Obligations of Seller. The obligation of Seller
to consummate the Closing is subject to the satisfaction or, the waiver of at
Seller's discretion, of the following further conditions:
(a)(i) Buyer and True North shall have performed in all material
respects all of its obligations hereunder required to be performed by it at or
prior to the Closing Date, (ii) the representations and warranties of Buyer and
True North contained in this Agreement and in any certificate or other writing
delivered by Buyer and True North pursuant hereto shall be true in all material
respects at and as of the Closing Date, as if made at and as of such date and
(iii) Seller shall have received a certificate signed by an officer of Buyer and
True North to the foregoing effect.
(b) All of the conditions to closing of Shareholder set forth in
the Stock Purchase Agreement shall have been met.
(c) True North shall have delivered to Seller a duly executed copy
of the Employment Agreement.
(d) Loeb & Loeb LLP, counsel to Buyer and True North, shall have
delivered an opinion substantially in the form of Exhibit F hereto.
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ARTICLE X.
INDEMNIFICATION
10.1. Indemnification of Buyer. Seller and Shareholder hereby
jointly and severally agree to indemnify and hold harmless Buyer and True North
and each of their respective directors, officers, employees, shareholders,
agents and Affiliates thereof (the "Purchaser Indemnitees"), against and in
respect of any out-of-pocket loss, cost, expense, liability, damage or claim
(including reasonable attorneys' fees and other costs and expenses) (all of the
foregoing collectively, "Losses") incurred or sustained by any Purchaser
Indemnitee as a result of any breach, inaccuracy or nonfulfillment or the
alleged breach, inaccuracy or nonfulfillment of any of the representations,
warranties and covenants of the Indemnifying Parties contained herein. The total
payments made by the Seller and Shareholder to the Purchaser Indemnitees with
respect to Losses shall not exceed $4,000,000; provided, however, that no
Purchaser Indemnitee shall be entitled to indemnification pursuant to this
Section 10.1 unless and until the aggregate amount of Losses to all Purchaser
Indemnitees equals at least $75,000, at which time the Purchaser Indemnitees
shall be entitled to indemnification for the total amount of such Losses.
Notwithstanding anything set forth in this Section 10.1, (i) any Loss incurred
by Buyer or True North arising out of Seller's or Shareholder's breach of any
provision of Section 7.1 shall be subject to the indemnification provision set
forth therein and shall not be covered under this Section 10.1 nor shall any
amounts recovered under Section 7.1(d) be applied to the minimum amount of
Losses set forth in the previous sentence and (ii) any Loss incurred by Buyer or
True North arising out of Seller's or Shareholder's breach of or failure to
perform any covenant or obligation to be performed by Seller or Shareholder at
or after the Closing Date including, but not limited to, payment of the Excluded
Liabilities, shall not be subject to or applied against the minimum amount of
Losses or the cap set forth in the previous sentence.
10.2. Indemnification of Seller and Shareholder by Buyer and True
North. The Buyer and True North hereby agree to indemnify and hold harmless
Seller and Shareholder and all of Seller's directors, officers, employees,
agents and Affiliates thereof (the "Seller Indemnitees") against and in respect
of any Losses incurred or sustained by Seller Indemnitees as a result of any
breach, inaccuracy or nonfulfillment or the alleged breach, inaccuracy or
nonfulfillment of any of the representations, warranties and covenants of the
Buyer or True North contained herein. The total payments made by the Buyer and
True North to the Seller Indemnitees with respect to Losses shall not exceed
$4,000,000; provided, however, Seller Indemnitees shall not be entitled to
indemnification pursuant to this Section 8.2 unless and until the aggregate
amount of Losses to Seller Indemnitees equals at least $75,000, at which time
the Seller Indemnitees shall be entitled to indemnification for the total amount
of such Losses. Notwithstanding anything set forth in this Section
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10.2, (i) any Loss incurred by Seller or Shareholder arising out of True North's
breach of any provision of 7.1 shall be subject to the indemnification provision
set forth therein and shall not be covered under this Section 10.2 nor shall any
amounts recovered under Section 7.1(d) be applied to the minimum amount of
Losses set forth in the previous sentence and (ii) any Loss incurred by Seller
or Shareholder arising out of Buyer's or True North's breach of or failure to
perform any covenant or obligation to be performed by Buyer or True North at or
after the Closing Date including, but not limited to, payment of the Purchase
Price or any Assumed Liabilities, shall not be subject to or applied against the
minimum amount of Losses or the cap set forth in the previous sentence.
10.3. Procedure. The following shall apply with respect to all
claims by either a Purchaser Indemnitee or a Seller Indemnitee (together,
"Indemnified Party") for indemnification: An Indemnified Party will give
Shareholder and Seller or True North and Buyer, as applicable (either,
"Indemnifying Parties"), prompt notice of any third-party claim, investigation,
action, suit, hearing or proceeding with respect to which such Indemnified Party
seeks indemnification pursuant to Section 10.1 or 10.2 (an "Indemnification
Notice"), which shall describe in reasonable detail the loss, liability or
damage that has been or may be suffered by the Indemnified Party. The failure to
give the Indemnification Notice shall not impair any of the rights or benefits
of such Indemnified Party under Section 10.1 or 10.2, except to the extent such
failure materially and adversely affects the ability of the Indemnifying Parties
to defend such claim or increases the amount of such liability. In the case of
any third-party claims as to which indemnification is sought by any Indemnified
Party, such Indemnified Party shall be entitled, at the sole expense and
liability of the Indemnifying Parties, to exercise full control of the defense,
compromise or settlement of any third-party claim, investigation, action, suit,
hearing or proceeding unless the Indemnifying Parties, within a reasonable time
after the giving of an Indemnification Notice by the Indemnified Party, shall
(i) deliver a written confirmation to such Indemnified Party that the
indemnification provisions of Section 10.1 or 10.2 are applicable to such claim,
investigation, action, suit, hearing or proceeding and the Indemnifying Parties
will indemnify such Purchaser Indemnitee in respect of such claim,
investigation, action or proceeding pursuant to the terms of Section 10.1 or
10.2 and, notwithstanding anything to the contrary, shall do so without
asserting any challenge, defense, limitation on Indemnifying Parties liability
for Losses, counterclaim or offset, (ii) notify such Indemnified Party in
writing of the intention of Indemnifying Parties to assume the defense thereof,
and (iii) retain legal counsel reasonably satisfactory to such Indemnified Party
to conduct the defense of such claim, investigation, action, suit, hearing or
proceeding. If the Indemnifying Parties assume the defense of any such claim,
investigation, action, suit, hearing or proceeding in accordance herewith, then
the Indemnified Party shall cooperate with the Indemnifying Parties in any
manner reasonably requested in connection with the defense, compromise or
settlement thereof. If the Indemnifying Parties so assume the
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defense of any such claim, investigation, action, suit, hearing or proceeding,
the Indemnified Party shall have the right to employ separate counsel and to
participate in (but not control) the defense, compromise, or settlement thereof,
but the fees and expenses of such counsel employed by the Indemnified Party
shall be at the expense of such Indemnified Party unless (i) the Indemnifying
Parties have agreed to pay such fees and expenses, (ii) any relief other than
the payment of money damages is sought against such Indemnified Party or (iii)
the named parties to any such claim, investigation, action, suit, hearing or
proceeding (including any impleaded parties) include an Indemnified Party and an
Indemnifying Party and such Purchaser Indemnitee shall have been advised by its
counsel that there is a conflict of interest between such Indemnified Party and
the Indemnifying Parties in the conduct of the defense thereof, and in any such
case the reasonable fees and expenses of such separate counsel shall be borne by
the Indemnifying Parties. If the Indemnifying Parties elect to direct the
defense of any such claim, investigation, action, suit, hearing or proceeding,
the Purchaser Indemnitee shall not pay, or permit to be paid, any part of any
claim or demand arising from such asserted liability unless the Indemnifying
Parties withdraw from the defense of such asserted liability, or unless a final
judgment from which no appeal may be taken by or on behalf of the Indemnified
Party is entered against the Indemnified Party for such liability. If the
Indemnifying Parties do not elect to defend, or if, after commencing or
undertaking any such defense, the Indemnifying Parties fail to prosecute or
withdraw such defense, the Indemnified Party shall have the right to undertake
the defense or settlement thereof, at the Indemnifying Parties' expense. If the
Purchaser Indemnitee assumes the defense of any such claim, investigation,
action, suit, hearing or proceeding pursuant to this Section 10.1 or 10.2 and
proposes to settle the same prior to a final judgment thereon or to forgo appeal
with respect thereto, then the Indemnified Party shall give the Indemnifying
Parties prompt written notice thereof and the Indemnifying Parties shall have
the right to participate in the settlement, assume or reassume the defense
thereof or prosecute such appeal, in each case at the Indemnifying Parties'
expense. The Indemnifying Parties shall not, without the prior written consent
of such Indemnified Party settle or compromise or consent to entry of any
judgment with respect to any such claim, investigation, action, suit, hearing or
proceeding (i) in which any relief other than the payment of money damages is or
may be sought against such Indemnified Party or (ii) which does not include as
an unconditional term thereof the giving by the claimant, person conducting such
investigation or initiating such hearing, plaintiff or petitioner to such
Indemnified Party of a release from all liability with respect to such claim,
investigation, action, suit or proceeding and all other claims or causes of
action (known or unknown) arising or which might arise out of the same facts.
10.4. Periodic Payments. Any indemnification required by Section 10.1
or 10.2 for costs, disbursements or expenses of any Indemnified Party in
connection with investigating, preparing to defend or defending any claim,
action,
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suit, hearing, proceeding or investigation shall be made by periodic payments by
the Indemnifying Parties to each Indemnified Party during the course of the
investigation or defense, as and when bills are received or costs, disbursements
or expenses are incurred.
10.5. Insurance. Any indemnification payments hereunder shall take
into account any insurance proceeds or other third party reimbursement actually
received.
10.6. Survival of Indemnification Rights. The representations and
warranties of Seller and Shareholder and Buyer and True North shall survive
until the second anniversary of the Closing Date, provided, however that any
representation or warranty made with regard to the Purchase Price shall survive
until the applicable statute of limitations expires. The indemnification to
which any Indemnified Party is entitled from the Indemnifying Parties pursuant
to Section 10.1 for Losses shall be effective so long as it is asserted prior to
the second year anniversary of the Closing Date.
ARTICLE XI.
DISPUTE RESOLUTION
11.1. Arbitration.
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(a) The parties shall promptly submit any dispute, claim, or
controversy arising out of or relating to this Agreement (including, without
limitation, with respect to the meaning, effect, validity, termination,
interpretation, performance, or enforcement of this Agreement) or any alleged
breach hereof (including any action in tort, contract, equity, or otherwise), to
binding arbitration before one arbitrator ("Arbitrator), except that any dispute
arising out of the calculation of the Profit Before Taxes pursuant to Section
2.6 shall not be subject to this provision but rather to the dispute resolution
provision set forth in Section 2.6. The parties agree that, except as otherwise
provided in Section 2.6, binding arbitration shall be the sole means of
resolving any dispute, claim, or controversy arising out of or relating to this
Agreement (including, without limitation, with respect to the meaning, effect,
validity, termination, interpretation, performance or enforcement of this
Agreement) or any alleged breach (including any claim in tort, contract, equity,
or otherwise) hereof; provided however, that this Section 11.1 shall not be
interpreted as applying to any other agreement between Seller or Shareholder and
Buyer or its Affiliates.
(b) If the parties cannot agree upon the Arbitrator, the Arbitrator
shall be selected by the Philadelphia chapter head of the American
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Arbitration Association upon the request of either side. The Arbitrator shall
be selected within thirty (30) days of request.
(c) The laws of the Commonwealth of Pennsylvania shall apply to any
arbitration hereunder. In any arbitration hereunder, this Agreement and any
agreement contemplated hereby shall be governed by the laws of the Commonwealth
of Pennsylvania applicable to a contract negotiated, signed, and wholly to be
performed in Pennsylvania, which laws the Arbitrator shall apply in rendering
his decision. The Arbitrator shall issue a written decision, setting forth
findings of fact and conclusions of law, within sixty (60) days after he shall
have been selected. The Arbitrator shall have no authority to award punitive or
other exemplary damages.
(d) The arbitration shall be held in Philadelphia, Pennsylvania in
accordance with and under the then-current provisions of the rules of the
American Arbitration Association, except as otherwise provided herein.
(e) On application to the Arbitrator, any party shall have rights to
discovery to the same extent as would be provided under the Federal Rules of
Civil Procedure, and the Federal Rules of Evidence shall apply to any
arbitration under this Agreement; provided, however, that the Arbitrator shall
limit any discovery or evidence such that his decision shall be rendered within
the period referred to in Section 11.1(c).
(f) The Arbitrator may, at his discretion and at the expense of the
party(ies) who will bear the cost of the arbitration, employ experts to assist
him in his determinations.
(g) The costs of the arbitration proceeding and any proceeding in
court to confirm any arbitration award or to obtain relief as provided in
Section 6.3, as applicable (including, without limitation, actual attorneys'
fees and costs), shall be borne by the unsuccessful party and shall be awarded
as part of the Arbitrator's decision, unless the Arbitrator shall otherwise
allocate such costs, for the reasons set forth, in such decision. The
determination of the Arbitrator shall be final and binding upon the parties and
not subject to appeal.
(h) Any judgment upon any award rendered by the Arbitrator may be
entered in and enforced by any court of competent jurisdiction. The parties
expressly consent to the non-exclusive jurisdiction of the courts (Federal and
state) in Philadelphia, Pennsylvania to enforce any award of the Arbitrator or
to render any provisional, temporary, or injunctive relief in connection with or
in aid of the Arbitration. The parties expressly consent to the personal and
subject matter jurisdiction of the Arbitrator to arbitrate any and all matters
to be submitted to
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arbitration hereunder. None of the parties hereto shall challenge any
arbitration hereunder on the grounds that any party necessary to such
arbitration (including, without limitation, the parties hereto) shall have been
absent from such arbitration for any reason, including, without limitation, that
such party shall have been the subject of any bankruptcy, reorganization, or
insolvency proceeding.
(i) The parties shall indemnify the Arbitrator and any experts
employed by the Arbitrator and hold them harmless from and against any claim or
demand arising out of any arbitration under this Agreement or any agreement
contemplated hereby, unless resulting from the willful misconduct of the person
indemnified.
(j) This arbitration clause shall survive the termination of this
Agreement and any agreement contemplated hereby.
11.2. Waiver of Jury Trial; Exemplary Damages. ALL PARTIES
HEREBY WAIVE THEIR RIGHTS TO TRIAL BY JURY WITH RESPECT TO ANY DISPUTE ARISING
UNDER THIS AGREEMENT. No party shall be awarded punitive or other exemplary
damages respecting any dispute arising under this Agreement.
11.3. Attorneys' Fees. The unsuccessful party to any court
or other proceeding arising out of this Agreement that is not resolved by
arbitration under Section 11.1 shall pay to the prevailing party all attorneys'
fees and costs actually incurred by the prevailing party, in addition to any
other relief to which it may be entitled. As used in this Section 11.3 and
elsewhere in this Agreement, "actual attorneys' fees" or "attorneys' fees
actually incurred" means the full and actual cost of any legal services actually
performed in connection with the matter for which such fees are sought,
calculated on the basis of the usual fees charged by the attorneys performing
such services, and shall not be limited to "reasonable attorneys' fees" as that
term may be defined in statutory or decisional authority.
ARTICLE XII.
TERMINATION
12.1. Termination Without Default. In the event that the Closing of
the transactions contemplated hereunder has not occurred by June 30, 1998 (the
"Scheduled Closing Date") and no material breach of this Agreement by the party
seeking to terminate this Agreement shall have occurred or have been made (as
provided in Section 12.2 hereof) any party hereto shall have the right, at its
sole option, to terminate this Agreement without liability to the other side.
Such right may
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be exercised by Buyer, on the one hand, or Seller on the other, as the case may
be, giving written notice to the other at any time after the Scheduled Closing
Date, specifying the event or state of facts giving rise to such right of
termination.
12.2. Termination Upon Default.
(a) Buyer may terminate this Agreement by giving notice to
Seller or Shareholder on or prior to the Closing, without prejudice to any
rights or obligations Buyer may have, if Seller or Shareholder shall have
materially breached any agreement, covenant, representation, or warranty
contained herein and such breach shall not be cured within the earlier of the
Scheduled Closing Date and 30 days following receipt by Seller or Shareholder of
a notice describing in reasonable detail the nature of such breach.
(b) Seller may terminate this Agreement by giving notice to
Buyer, without prejudice to any rights or obligations Seller may have, if Buyer
shall have materially breached any of its covenants, agreements,
representations, and warranties contained herein and such breach shall not be
cured within the earlier of the Scheduled Closing Date and 30 days following
receipt by Buyer of a notice describing in reasonable detail the nature of such
breach.
12.3. Survival. The provisions of Section 13.4 shall survive
any termination hereof pursuant to Article XII.
ARTICLE XIII.
MISCELLANEOUS
13.1. Notices. All notices, requests, demands and other
communications to any party hereunder shall be in writing and shall be given to
such party at its address or telecopier number set forth below, or such other
address or telecopier number as such party may hereinafter specify by notice to
each other party hereto:
if to Buyer, to:
The Tierney Group, Inc.
40 West 23rd Street
New York, New York 10010
Attention: Valentine J. Zammit
Telecopy: (212) 727-1739
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if to True North:
True North Communications Inc.
40 West 23rd Street
New York, New York 10010
Attention: Valentine J. Zammit
Telecopy: (212) 727-1739
in either case with a copy to:
True North Communications Inc.
101 East Erie Street
Chicago, Illinois 60611
Attention: Dale Perona
Telecopy: (312) 425-6353
- and -
Loeb & Loeb LLP
345 Park Avenue
New York, New York 10154
Attention: Andrew M. Ross, Esq.
Telecopy: (212) 407-4990
if to Seller or Shareholder:
B.P. Tierney & Associates, Inc.
200 South Broad Street, 10th Floor
Philadelphia, Pennsylvania 19102
Attention: Brian P. Tierney
Telecopy: (215) 790-4299
with a copy to:
Blank Rome Comisky & McCauley LLP
One Logan Square
Philadelphia, Pennsylvania 19103
Attention: Alan L. Zeiger, Esq.
Telecopy: (215) 569-5628
Each such notice, request or other communication shall be effective (i) if given
by telecopy, when such telecopy is transmitted to the telecopy number specified
herein and the appropriate answerback is received or, (ii) if given by certified
mail, 72 hours
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after such communication is deposited in the mails with first class postage
prepaid, properly addressed or, (iii) if given by any other means, when
delivered at the address specified herein.
13.2. Amendments; No Waivers. (a) Any provision of this Agreement
may be amended or waived if, and only if, such amendment or waiver is in writing
and signed, in the case of an amendment, by each party hereto, or in the case of
a waiver, by the party against whom the waiver is to be effective.
(b) No failure or delay by any party hereto in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
13.3. Publicity. Except as required by law, the parties agree that
they or their agents shall not issue any press release or make any other public
disclosure concerning the transactions contemplated hereunder without the prior
approval of the other party hereto.
13.4. Expenses. Except as otherwise provided herein, all costs and
expenses incurred in connection with this Agreement shall be paid by the party
incurring such cost or expense.
13.5. Successors and Assigns. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that neither Seller nor Shareholder
may assign, delegate or otherwise transfer any of its rights or obligations
under this Agreement without the prior written consent of Buyer.
13.6. Governing Law. This Agreement shall be construed in accordance
with and governed by the laws of the Commonwealth of Pennsylvania, without
giving effect to the conflict of laws principles thereof.
13.7. Counterparts; Effectiveness. This Agreement may be signed in
any number of counterparts, each of which shall be an original and all of which
shall be deemed to be one and the same instrument, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
13.8. Entire Agreement. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all prior agreements, understandings and negotiations, both written
and oral, among
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the parties with respect to the subject matter of this Agreement. No
representation, inducement, promise, understanding, condition or warranty not
set forth herein has been made or relied upon by any party hereto. Neither this
Agreement nor any provision hereof is intended to confer upon any Person other
than the parties hereto any rights or remedies hereunder other than Purchaser
Indemnities as set forth in Section 10.1 hereof and True North, which shall be a
third party beneficiary hereof.
13.9. Bulk Sales Laws. Buyer hereby waives compliance by Seller with
the provisions of the "bulk sales", "bulk transfer" or similar laws of any
state. Seller and Shareholder jointly and severally agree to indemnify and hold
Buyer harmless from and against any and all Loss incurred by Buyer or any of its
Affiliates as a result of any failure to comply with any such "bulk sales",
"bulk transfer" or similar laws.
13.10. Setoff. Buyer shall have the right to set off against any
amounts payable by Buyer under this Agreement any amounts owed by Seller or
Shareholder to Buyer, True North or any other Purchaser Indemnitee; provided,
however, Buyer shall not have the right to set-off against any payments due
Seller under Seller's Employment Agreement.
13.11. Disclosure. All disclosures on the Schedules to this
Agreement shall be deemed to be disclosed herein in response to each relevant
and/or applicable Section of this Agreement and to each relevant and/or
applicable Schedule hereto.
13.12. Remedies. The remedies provided in Articles X and XI shall
constitute the exclusive remedies for all matters under this Agreement, except
any party shall be entitled to seek specific performance or other equitable
relief in connection with any breach of this Agreement, none of which rights or
remedies shall be affected or diminished by the remedies provided hereunder.
13.13. Severability. If any one or more provisions of this
Agreement shall, for any reasons, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement, but this Agreement shall
be construed as if such invalid, illegal or unenforceable provision had never
been contained herein.
13.14. Captions. The captions herein are included for convenience
of reference only and shall be ignored in the construction or interpretation
hereof.
13.15. Guarantee. True North hereby unconditionally and irrevocably
guarantees to Seller and Shareholder, and agrees to act as surety for, the
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full and prompt payment of the Purchase Price by Buyer and the full and prompt
performance of all of Buyer's obligations, covenants, and agreements under this
Agreement. This surety shall remain in full force and effect notwithstanding
any amendment or modification of this Agreement.
13.16. Permitted Transfers. At any time from and after the
Closing Date, Seller shall be permitted to transfer all or any portion of the
Shares to Shareholder, Shareholder's spouse or lineal descendants or a trust for
the benefit of any of the foregoing individuals or a charitable trust of which
Shareholder or Seller is the settlor, provided that such transfer to any such
individual or entity qualifies as an exempt transaction under the Securities Act
and any applicable state securities laws and any recipient of the Shares makes
the representations and warranties contained in Section 3.27 herein, unless the
Registration Statement has been deemed effective by the SEC in which case no
exemption would be required.
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IN WITNESS WHEREOF, Buyer, Seller and Shareholder have caused this
Agreement to be duly executed by their respective authorized officers or
representatives as of the day and year first above written.
THE TIERNEY GROUP, INC.
By: /s/ Dale Perona
-----------------------------
Name:
Title:
TRUE NORTH COMMUNICATIONS INC.
By: /s/ Dale Perona
-----------------------------
Name:
Title:
B.P. TIERNEY & ASSOCIATES, INC.
By: /s/ Brian P. Tierney
-----------------------------
Name: Brian P. Tierney
Title: President
/s/ Brian P. Tierney
--------------------------------
Brian P. Tierney
Shareholder
[SIGNATURE PAGE TO ASSET PURCHASE AGREEMENT]
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